## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2428

___________
* * In re: Price S. Russell, * * Petition for Writ of Mandamus. Petitioner, * [PUBLISHED] * *

___________ Submitted: August 27, 1998 Filed: September 16, 1998

___________ Before McMILLIAN, BEAM, and MURPHY, Circuit Judges.

___________ PER CURIAM. Price S. Russell petitions the court for mandamus relief directing the Board of Veterans Appeals (BVA) and the United States Court of Veterans Appeals (CVA) to ru le on the issues in his claim. In response the Department of Veterans Affairs (VA) seeks dismissal of the petition for lack of jur isdiction, arguing that jurisdiction over the claimlies e xclusively with the CVA and the Federal Circuit. We agree with th e government and dismiss the petition for lack of jurisdiction.
The United States retains sovereign immunity from lawsuits unless th e government

has consented to suit. See United States v. Mitchell , 463 U.S. 206, 212 (1983). Such a waiver of sovereign immunity must be unequivocal. See McNabb v. Riley , 29 F.3d 1303, 1306 (8th Cir. 1994) (citing United States v. Nordic Village, Inc. ,-2-

503 U.S. 30, 33 (1992)). It is well settled that the mandamus sta tute, 28 U.S.C. § 1361, do es not provide a waiver of sovereign immunity. See Washington Legal Found. v

. United States Sentencing Comm & n , 89 F.3d 897, 901 (D.C. Cir. 1996); Essex v. Vinal , 499 F.2d 226, 231-32 (8th Cir. 1974), cert. denied , 419 U.S. 1107 (1975).
Under th e Veterans Judicial Review Act of 1988 (VJRA), the VA Regiona l Off ice (RO) decides questions of law and fact relating to benefits decisions. See 3 8 U.S.C. § 511(a). Th e veteran may appeal the RO & s decision to the BVA, which either issues a final decision or remands to the RO. See38 U.S .C. § 7104. The final decision “may not be reviewed by any other officia l or by any court, whether by an action in the nature o f mandamus or otherwise,” 38 U.S.C. § 511(a), except in certain limite d circumst ances, see 38 U.S.C. § 511(b). The CVA has exclusive jurisdiction ove r appeals from final decisions by th e BVA. See 38 U.S.C. § 7252(a). The CVA has the authorit y to issue writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a), and t o “compel action of the Secretary unlawfullywithheld or unreasonably delayed.” See 38 U.S.C. § 7261(a)(2); Cox v. West , No. 98-7002, 1998 WL 397046, at *4 (Fe d. Cir. July 16, 1998). The Court of Appeals for the Fe deral Circuit has exclusive jurisdiction over appeals fr om the CVA. See 38 U.S.C. § 7292. A claimant may petition the Unite d States Supreme Court for review of the decision of the Federal Circuit. See 38 U.S.C. § 7291.
Her e, Russell alleges that a claim for service-connected disability benefits tha t he filed with the VA on March 27, 1987, has not yet been decided. The record reflects that his claim was denied by the RO in 1987, and was reconsidered and partially granted in 1992 based on a revision of the applicable law. The BVA ultimately upheld th e partial denial, and his appeal to the CVA has been pending since late 1997.
The Sixth Circuit has recently addressed a case factually similar to the presen t case, in which veterans attempted to bring a class action lawsuit challenging the manner in which the VA processes its claims, alleging it leads to delays in receiving final-3-

decisions. The Sixth Circuit held that it did not have subject m atter jurisdiction over the veteran s & claims. See Beamon v. Brown , 125 F.3d 965, 974 (6th Cir. 1997). Th e veterans a rgued that the Administrative Procedure Act (APA), 5 U.S.C. § 555(b) , providedthe necessary waiver of sovereign immunity. The court noted that the APA waives immun ity only when the agency action is final and there is no other adequat e reme dy in a court. See 5 U.S.C. § 704. The Sixth Circuit held that the system o f jud icial review created by the VJRA provided an adequate alternate remedy. Se e Beamon , 125 F.3d at 967-68.
We find, as the Sixth Circuit did, that the United States has not waived it s sovereign immunity as to review of VA procedures by any court other than the CVA, Federal C ircuit, and Supreme Court. We further find that this court does not hav e jurisdiction to grant mandamus relief affecting the CVA. The All Writs Act provides that cou rts “may issue all writs necessary or appropriate in aid of their respectiv e jurisdictions.” 28 U.S.C. § 1651. Because this court does not have jurisdiction ove r appeals from the CVA, a writ of mandamus would not aid its jurisdiction. Accordingl y, the petition for a writ of mandamus is dismissed for lack o f jurisdiction. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.