Case: 22-2285 Document: 54 Page: 1 Filed: 05/03/2024
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`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CHARLES J. LOVE, JR.,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-2285
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 21-1323, Judge Amanda L. Mere-
`dith, Judge Joseph L. Falvey, Jr., Judge Scott Laurer.
`
`-------------------------------------------------
`
`BRIAN M. AUMILLER, TAMORA E. DIEZ,
`Claimants-Appellants
`
`ROGER A. GEORGES,
`Claimant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-2296
`
`

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`Case: 22-2285 Document: 54 Page: 2 Filed: 05/03/2024
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`2
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`LOVE v. MCDONOUGH
`
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 21-3565, Judge Amanda L. Mere-
`dith, Judge Joseph L. Falvey, Jr., Judge William S. Green-
`berg.
`
`
`-------------------------------------------------
`
`JAMES R. LINDGREN,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-1135
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-1154, Judge Coral Wong Pi-
`etsch.
`
`______________________
`
`Decided: May 3, 2024
`______________________
`
`KRISTINA MCKENNA, Latham & Watkins LLP, Boston,
`MA, argued for claimants-appellants. Also represented by
`ROMAN MARTINEZ, Washington, DC; MELANIE L. BOSTWICK,
`Orrick, Herrington & Sutcliffe LLP, Washington, DC;
`KENT A. EILER, JOHN D. NILES, Carpenter Chartered, To-
`peka, KS.
`
` EMMA EATON BOND, Commercial Litigation Branch,
`Civil Division, United States Department of Justice,
`
`

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`Case: 22-2285 Document: 54 Page: 3 Filed: 05/03/2024
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`LOVE v. MCDONOUGH
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`Washington, DC, argued for respondent-appellee. Also
`represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
`PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, RICHARD
`STEPHEN HUBER, Office of General Counsel, United States
`Department of Veterans Affairs, Washington, DC.
`______________________
`
`Before DYK, SCHALL, and HUGHES, Circuit Judges.
`DYK, Circuit Judge.
`Four veterans in three separate cases appeal from
`judgments of the United States Court of Appeals for Veter-
`ans Claims (“Veterans Court”) dismissing the veterans’ pe-
`titions for writs of mandamus for lack of jurisdiction. We
`previously consolidated two cases, Love v. McDonough, No.
`22-2285, and Aumiller v. McDonough, No. 22-2296, and the
`Love1 case and Lindgren v. McDonough, No. 23-1135, were
`argued together. Because there is an alternative remedy
`by appeal, we affirm.
`
`BACKGROUND
`The underlying issue in these cases is whether a vet-
`eran whose rating is reduced is entitled to have the original
`rating continue pending final resolution of the validity of
`the reduction. The factual background for each of the two
`companion cases is as follows.
`I. Love v. McDonough
`Charles Love served on active duty in the Army from
`January 1968 to March 1971. Mr. Love was evaluated at a
`100 percent disability rating for prostate cancer from 2005
`to 2007, at which point his rating was reduced to 20 per-
`cent. Most recently, Mr. Love was again evaluated at a 100
`percent disability rating for prostate cancer, effective May
`8, 2009. In September 2019, Mr. Love’s rating was reduced
`
`
`1 We refer to the three plaintiffs in the Love and Au-
`miller consolidated case (Love, Aumiller, and Diez) as Love.
`
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`LOVE v. MCDONOUGH
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`to 20 percent, effective December 1, 2019. This reduction
`also discontinued his special monthly compensation
`(“SMC”) that he had been granted under 38 U.S.C.
`§ 1114(s)(1). Mr. Love contends that his disability compen-
`sation has been reduced by nearly $400 each month since
`December 1, 2019. Mr. Love sought review of his reduction
`and, after the regional office upheld the reduction, he un-
`successfully appealed the decision to the Board of Veterans
`Appeals (“Board”) and then to the Veterans Court. His ap-
`peal of his rating reduction is currently before this court.
`Love v. McDonough, No. 23-1465.
`Brian Aumiller served on active duty in the Army at
`different times from 2002 to 2007. Mr. Aumiller was also
`entitled to SMC and had a total disability rating evaluation
`based on individual unemployability (“TDIU”) in addition
`to ratings for other service-connected disabilities. On No-
`vember 5, 2019, the Department of Veterans Affairs (“VA”)
`notified Mr. Aumiller that his TDIU rating would be dis-
`continued based on evidence of gainful employment. This
`discontinuance also affected his entitlement to SMC. He
`asserts that his disability compensation has been reduced
`by nearly $2,000 each month since May 1, 2020. Mr. Au-
`miller filed a Notice of Disagreement with the Board, and
`his appeal remains pending.
`Tamora Diez served in the Navy from August 1979 to
`August 1999. On June 1, 2020, the VA notified Ms. Diez
`that her evaluation for her service-connected scar would be
`reduced from 10 percent disabling to 0 percent. The reduc-
`tion would reduce her total service-connected disability
`evaluation from 80 percent to 70 percent, affecting her dis-
`ability compensation. She contends that her disability
`compensation has been reduced by over $200 per month
`since September 2020. Ms. Diez filed a Notice of Disagree-
`ment, challenging the rating reduction. Her appeal re-
`mains pending.
`None of these three appellants requested that the VA
`continue their benefits pending resolution of the question
`whether their benefits were properly reduced.
`
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`LOVE v. MCDONOUGH
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`On March 2, 2021, Mr. Love petitioned the Veterans
`Court for a writ of mandamus to compel the VA to resume
`his payments in the pre-reduction amount, arguing that
`the VA could not lawfully decrease or discontinue his pay-
`ments until his appeals challenging the reduction were ex-
`hausted. At that point, according to Mr. Love, the VA could
`seek to recover the interim payments, and the veteran
`could argue for waiver of the overpayment by establishing
`“that recovery [of the overpayment] would be against eq-
`uity and good conscience.” 38 U.S.C. § 5302(a)(1). Mr. Love
`argued that the Secretary’s action, by decreasing or discon-
`tinuing the payments while his appeal was pending, was
`an unlawful withholding, and that mandamus is available
`for “compelling unlawfully withheld agency action.” Love,
`J.A. 42. The Veterans Court found that there was no “basis
`on which we could issue a writ under the [All Writs Act] in
`aid of our jurisdiction.” Love v. McDonough, 35 Vet. App.
`336, 353 (2022).
`On May 25, 2021, Mr. Aumiller and Ms. Diez filed a
`nearly identical petition. The Veterans Court stayed the
`proceedings for Mr. Aumiller and Ms. Diez pending the de-
`cision in Love v. McDonough, U.S. Vet. App. No. 21-1323.
`Following the Love decision, the Veterans Court dismissed
`Mr. Aumiller’s and Ms. Diez’s petition for lack of jurisdic-
`tion. All three claimants appealed to this court.
`II. Lindgren v. McDonough
`James Lindgren served in the Army from 2009 to 2012.
`Mr. Lindgren had a service-connected disability rating of
`100 percent due to post-traumatic stress disorder (“PTSD”)
`with depressive disorder. He also was entitled to SMC. On
`April 16, 2021, the VA notified Mr. Lindgren that it
`planned to reduce his PTSD rating and discontinue his en-
`titlement to SMC effective September 1, 2021. He contends
`that his disability compensation has been withheld by
`more than $400 each month since October 1, 2021. His ap-
`peal before the Board remains pending.
`
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`LOVE v. MCDONOUGH
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`Unlike the appellants in No. 22-2285, on November 15,
`2021, Mr. Lindgren submitted a demand to the VA to “im-
`mediately cease the unlawful withholding of disability
`compensation” or to “immediately issue a written, appeal-
`able decision regarding its determination to continue its
`withholding.” Lindgren, J.A. 104. After Mr. Lindgren did
`not receive a response to his request, he petitioned the Vet-
`erans Court in a Petition to Compel Unlawfully Withheld
`Agency Action on February 25, 2022, making the same re-
`quest as in the Love case.
`The Veterans Court stayed the proceedings in Lind-
`gren pending the disposition in Love. Following the order
`in Love, the Veterans Court dismissed in part “the petition
`requesting that the Court compel [the] VA to pay the peti-
`tioner at his pre-reduction rate of compensation until his
`appeal of the rating reduction is exhausted.” Lindgren v.
`McDonough, No. 22-1154, 2022 WL 5240564, at *2 (Vet.
`App. Oct. 6, 2022).
`The Veterans Court ordered the Secretary to respond
`to the portion of Mr. Lindgren’s petition “that asserted that
`[the] VA had not acted on his November 2021 request for
`an appealable decision about the implementation date of
`his rating reduction.” Id. at *1. The Secretary responded
`that the VA did not intend to act on his request until a de-
`cision regarding the merits of his rating reduction was ren-
`dered. The Secretary “thus asserted that the petitioner has
`not shown that [the] VA has refused to act on his request,
`but merely that it has not yet done so.” Id. at *2.
`The Veterans Court found that Mr. Lindgren may pur-
`sue alternative means for relief by arguing “before the [VA]
`that [it] should address his November 2021 request” but
`that “the petitioner did not ask the Court to compel [the]
`VA to respond to his November 2021 request.” Id. at *3.
`Because there was an alternative means for relief, the Vet-
`erans Court denied Mr. Lindgren’s petition. This appeal
`followed.
`We have jurisdiction pursuant to 38 U.S.C. § 7292(c).
`
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`LOVE v. MCDONOUGH
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`DISCUSSION
`Our jurisdiction to review decisions of the Veterans
`Court is limited by statute. We have jurisdiction to review
`decisions of the Veterans Court “with respect to the validity
`of a decision of the Court on a rule of law or of any statute
`or regulation . . . or any interpretation thereof (other than
`a determination as to a factual matter) that was relied on
`by the Court in making the decision.” 38 U.S.C. § 7292(a).
`We have “jurisdiction to review the [Veterans Court’s] de-
`cision whether to grant a mandamus petition that raises a
`non-frivolous legal question.” Beasley v. Shinseki, 709 F.3d
`1154, 1158 (Fed. Cir. 2013).
`
`I
`The sole issue before us on appeal is whether manda-
`mus relief was available for the veterans under the All
`Writs Act, 28 U.S.C. § 1651(a).2 In particular part, the Act
`authorizes that “all courts established by Act of Congress
`may issue all writs necessary or appropriate in aid of their
`respective jurisdictions.” 28 U.S.C. § 1651(a). Since the
`Veterans Court has jurisdiction to “compel action of the
`Secretary unlawfully withheld,” 38 U.S.C. § 7261(a)(2), ap-
`pellants contend that when “an agency acts incorrectly, the
`All Writs Act provides authority for the appellate court to
`issue relief.” Love, Appellant Opening Br. 37. The veter-
`ans sought a writ of mandamus at the Veterans Court to
`prohibit the reduction of benefits temporarily until a final
`decision is rendered.
`
`
`2 The Love petitions and Mr. Lindgren’s petition in-
`cluded two bases for jurisdiction, the All Writs Act, 28
`U.S.C. § 1651(a), and the Veterans Court jurisdictional
`statute, 38 U.S.C. § 7252(c). But both the Love appellants
`and Mr. Lindgren concede that only the first basis is rele-
`vant on appeal. Love, Appellant Opening Br. 12; Lindgren,
`Appellant Opening Br. 10.
`
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`LOVE v. MCDONOUGH
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`“A writ of mandamus is an ‘extraordinary remedy.’”
`Hargrove v. Shinseki, 629 F.3d 1377, 1379 (Fed. Cir. 2011)
`(quoting Mukand Int’l, Ltd. v. United States, 502 F.3d
`1366, 1369 (Fed. Cir. 2007)). In order to obtain mandamus,
`(1) the petitioner must show a “clear and indisput-
`able” right to issuance of the writ under the rele-
`vant substantive law, (2) the petitioner must have
`“no other adequate means” to attain the desired re-
`lief, 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 appro-
`priate under the circumstances.”
`Wolfe v. McDonough, 28 F.4th 1348, 1354 (Fed. Cir. 2022)
`(quoting Cheney v. U. S. Dist. Ct. for D.C., 542 U.S. 367,
`380–81 (2004)). “[T]he party seeking issuance of the writ
`must have no other adequate means to attain the relief he
`desires—a condition designed to ensure that the writ will
`not be used as a substitute for the regular appeals process.”
`Hargrove, 629 F.3d at 1379 (quoting Cheney, 542 U.S. at
`380–81). Without expressing any views as to the merits of
`the underlying issue, we conclude that mandamus is not
`available because there is an adequate remedy by appeal
`that appellants have chosen not to invoke.
`II
`In No. 22-2285, Mr. Love, Mr. Aumiller, and Ms. Diez
`made no claim to the VA or to the Board for entitlement to
`interim payments. Love, 35 Vet. App. at 348. In Mr. Lind-
`gren’s case, a request was made, but there was no effort to
`pursue the matter further when the agency failed to act.
`Lindgren, 2022 WL 5240564, at *1–2. The veterans urge
`that further action—i.e., an appeal of any denial of a re-
`quest for interim relief—was not possible because the
`Board in Lindgren refused to rule on the request for in-
`terim relief until it decided the merits of Mr. Lindgren’s
`rating reduction. Love, Appellant Reply Br. 25 (“[T]he Sec-
`retary blocked that path to appeal and forced the veteran
`to continue suffering . . . .”).
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`LOVE v. MCDONOUGH
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`The appellants fail to recognize that the Board is not
`the last word. The very purpose of the statutory provisions
`providing for appeal to the Veterans Court, 38 U.S.C.
`§ 7252(a), and to this court, 38 U.S.C. § 7292(c), is to cor-
`rect error by the VA. The veterans in the Love case could
`request relief from the VA. In both the Love and Lindgren
`cases, the failure of the VA to act or refuse to rule would
`support the petitions for mandamus to compel the agency
`to decide the case so that an appeal could be pursued. In-
`deed, we have routinely approved this approach in the vet-
`erans context,3 and the Veterans Court in these cases
`advised the appellants of the availability of this very pro-
`cess.4
`Here, despite appellants’ claims at oral argument, no
`request was made to compel a decision by the Board, even
`in Lindgren, as the Veterans Court determined. Lindgren,
`2022 WL 5240564, at *3 (“[T]he petitioner did not ask the
`Court to compel [the] VA to respond to his November 2021
`
`3 See Bates v. Nicholson, 398 F.3d 1355, 1357 (Fed.
`Cir. 2005) (reversing and remanding with instructions to
`issue the writ of mandamus to direct the Board to decide
`the matter so that petitioner could pursue his appeal); Cox
`v. West, 149 F.3d 1360, 1366 (Fed. Cir. 1998) (vacating and
`remanding for the Veterans Court to decide “whether to is-
`sue a writ of mandamus compelling the Secretary and the
`Board . . . to issue a final decision”); Martin v. O’Rourke,
`891 F.3d 1338, 1343 (Fed. Cir. 2018) (“Mandamus is thus
`an appropriate procedural vehicle to address claims of un-
`reasonable delay . . . .”).
`4 See Lindgren, 2022 WL 5240564, at *3 (“If the pe-
`titioner pursues alternative means to obtain the relief he
`seeks and [the] VA fails to respond within a reasonable
`time, he may return to the Court and file a new petition.”);
`Love, 35 Vet. App. at 348 (“Should Mr. Love seek a section
`511(a) decision that could be appealed to the Board and
`then this Court . . . his ability to obtain a decision of the
`Secretary would involve our prospective jurisdiction.”).
`
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`LOVE v. MCDONOUGH
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`request.”); see also In re Tennant, 359 F.3d 523, 528 (D.C.
`Cir. 2004). If a decision had been obtained from the Board
`denying the requested relief, a remedy by appeal would
`have been available to the veterans.
`III
`Any argument that the lack of a final judgment on the
`underlying disability claim would preclude an appeal from
`the denial of a request for interim relief would necessarily
`fail. Finality is assessed on a claim-by-claim basis, and the
`question of entitlement to interim payments as a discrete
`benefit is a separate legal claim from the merits of an un-
`derlying rating reduction. See Elkins v. Gober, 229 F.3d
`1369, 1374 (Fed. Cir. 2000) (“This court has consistently
`recognized that the various claims of a veteran’s overall
`‘case’ may be treated as distinct for jurisdictional pur-
`poses.”). The same is true for appeals from the Board to
`the Veterans Court. Id. at 1375 (“Our decisions are con-
`sistent with the approach adopted by the Veterans Court
`in treating a veteran’s different claims as separately ap-
`pealable matters.”); see, e.g., Hamilton v. Brown, 4 Vet.
`App. 528, 544 (1993). A decision from the Board denying
`interim relief would be a final decision within the Veterans
`Court’s jurisdiction. Kirkpatrick v. Nicholson, 417 F.3d
`1361, 1364 (Fed. Cir. 2005) (“Our case law and section
`7104(d)(2) define a Board decision as including an order
`granting appropriate relief or denying relief.”). A decision
`by the Veterans Court denying relief would also be appeal-
`able. 38 U.S.C. § 7292(a).
`Even if the request for interim relief were not treated
`as a separate claim, review in this court would be available.
`Although we have “generally declined to review non-final
`orders of the Veterans Court,” there are exceptions in lim-
`ited and rare circumstances. Williams v. Principi, 275 F.3d
`1361, 1363 (Fed. Cir. 2002) (quoting Adams v. Principi, 256
`F.3d 1318, 1320 (Fed. Cir. 2001)). An appeal is available
`if three conditions are satisfied: (1) there must
`have been a clear and final decision of a legal issue
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`that (a) is separate from the remand proceedings,
`(b) will directly govern the remand proceedings or,
`(c) if reversed by this court, would render the re-
`mand proceedings unnecessary; (2) the resolution
`of the legal issues must adversely affect the party
`seeking review; and, (3) there must be a substan-
`tial risk that the decision would not survive a re-
`mand, i.e., that the remand proceeding may moot
`the issue.
`Williams, 275 F.3d at 1364 (footnotes omitted).
`If the veterans had appealed the question of their enti-
`tlement to interim payments while the merits of their re-
`ductions were still pending, their appeals would have
`fallen within this exception. The proper implementation
`date is a legal question separate from the proceedings, the
`resolution would adversely affect the veterans, and, as the
`veterans point out, “any relief issued once the decisions are
`final [would] be meaningless.” Love, Appellant Opening
`Br. 19. The conditions for a non-final appeal would have
`been satisfied. See, e.g., Adams, 256 F.3d at 1321.
`As the government concedes, if an appeal had been
`taken, relief under Rule 8(a) of the Court of Veterans Ap-
`peals Rules of Practice and Procedure was also potentially
`available pending appeal to stay the withholding of bene-
`fits while the merits of the veterans’ appeals were consid-
`ered. See Groves v. McDonough, 34 F.4th 1074, 1081 (Fed.
`Cir. 2022). Similar relief from this court would be poten-
`tially available under Rule 18 of the Federal Rules of Ap-
`pellate Procedure.
`
`IV
`When, as here, there is a remedy by appeal, “[i]t is well
`established that mandamus is unavailable.” Wolfe, 28
`F.4th at 1357; see also Bankers Life & Cas. Co. v. Holland,
`346 U.S. 379, 384–85 (1953) (explaining that mandamus
`“should be resorted to only where appeal is a clearly inad-
`equate remedy” (citation omitted)). Here, much like in
`Wolfe, “[i]f [appellants] continued to follow the appeals
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`process prescribed in title 38, [they] would have received a
`Board decision appealable to the Veterans Court.” 28 F.4th
`at 1358.
`The remedy by appeal exception to mandamus applies
`even if a different type of mandamus order is itself neces-
`sary to create the appealable decision. See, e.g., In re Sha-
`ron Steel Corp., 918 F.2d 434, 438 (3d Cir. 1990) (denying
`a petition for mandamus when an adequate means to at-
`tain relief had been created by the issuance of mandamus
`on alternative grounds).
`CONCLUSION
`Because there was an alternative remedy by appeal,
`the Veterans Court did not err in dismissing the petitions
`for writs of mandamus.
`AFFIRMED
`COSTS
`
`No costs.
`
`
`