NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

GARY B. DUNCAN,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2020-2099

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-2116, Judge Michael P. Allen.

______________________

Decided: January 13, 2021

______________________

GARY B. DUNCAN, Milledgeville, GA, pro se. 

 RICHARD PAUL SCHROEDER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,

JR., LOREN MISHA PREHEIM. 

 ______________________

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2 DUNCAN v. WILKIE

Before PROST, Chief Judge, CLEVENGER and DYK, Circuit 

Judges.

PER CURIAM.

Veteran Gary B. Duncan appeals the denial of his mandamus petition by the Court of Appeals for Veterans 

Claims (“Veterans Court”). Mr. Duncan had asked the Veterans Court to compel the Department of Veterans Affairs 

(“VA”) to decide his benefits-overpayment claim. In support of mandamus, Mr. Duncan argued that the VA had 

unreasonably delayed in making its determination. The 

Veterans Court found no unreasonable delay and denied 

mandamus. During the pendency of this appeal from that 

denial, the relevant regional office (“RO”) of the VA decided 

part, but not all, of Mr. Duncan’s claim. Although the VA 

insists that this partial decision moots Mr. Duncan’s petition, we are not convinced. For the reasons discussed below, we vacate the Veterans Court’s order denying 

mandamus and remand to the Veterans Court for reconsideration of the mandamus petition in light of the RO’s partial determination.

I

This appeal is part of a now ten-year dispute over

whether the VA overpaid Mr. Duncan’s service-connected

disability benefits from 1988 to 2009. The VA says yes, and 

further insists that its overpayments were exclusively 

Mr. Duncan’s fault—and so it wants them back, to the tune 

of nearly twelve thousand dollars. Mr. Duncan insists that 

any overpayment was the VA’s mistake and that he 

shouldn’t have to repay two decades of disability benefits.

Mr. Duncan served on active duty from 1976 to 1979. 

Since discharge, he has received service-connected benefits 

at a ten percent disability rating. But Mr. Duncan has also 

been incarcerated since December 8, 1987. Under 

38 U.S.C. § 5313 and 38 C.F.R. § 3.665, while incarcerated 

he is entitled to only half benefits, the reduction of which 

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DUNCAN v. WILKIE 3

should have started on February 7, 1988, the sixty-first day 

of his incarceration. Nonetheless, the VA paid him full 

benefits for over two decades. But in 2009, the VA finally 

notified Mr. Duncan that his compensation benefits were 

reduced due to his incarceration. A few months later, the 

VA clarified that the reduction was retroactive: he now 

owed half his paid benefits back, as a debt. Since then, the 

VA has been withholding Mr. Duncan’s benefit payments 

and applying them toward his supposed balance. For his 

part, Mr. Duncan explains (and no factfinder has so far 

found to the contrary) that he had continually informed the 

VA that he was incarcerated—including by providing numerous changes of address corresponding to various prisons.

Mr. Duncan asked for a waiver of the overpayment 

debt; his request was denied in June 2010. That August, 

he submitted a notice of disagreement in response. 

Mr. Duncan then raised an argument as to whether the

overpayment debt was valid at all. The validity question 

was twofold: Mr. Duncan (1) contested the amount of the 

debt and (2) argued “administrative error” under 38 U.S.C. 

§ 5112(b)(10) and 38 C.F.R. § 3.500(b)(2)—i.e., that the 

overpayment was solely the VA’s mistake, as he’d repeatedly told the VA he was incarcerated yet they’d paid him in 

full anyway. If Mr. Duncan were correct about administrative error, he would not need a waiver: there would be no 

debt at all, as any adjustment to his benefits would be prospective only.1

The case went on for years, including at least one trip 

to the Veterans Court and several remands by the Board of 

Veterans’ Appeals (“Board”) along the way. Eventually, on 

1 The effective date of a reduction of award, in the 

event of “an erroneous award based solely on administrative error,” is the “date of last payment.” 38 U.S.C.

§ 5112(b)(10); 38 C.F.R. § 3.500.

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4 DUNCAN v. WILKIE

January 9, 2019, the Board issued the remand order relevant to this appeal, directed at the RO:

1. Adjudicate the issue of whether the overpayment 

was properly created, to include the amount of debt 

owed and the raised matter of sole administrative 

error.

2. After the issue regarding whether the overpayment was properly created is resolved to the Veteran’s satisfaction, perfected on appeal, or finally 

denied, issue a supplemental statement of the case 

(SSOC) that addresses the waiver issue, if appropriate (i.e., if creation of the overpayment debt was 

valid).

Thus, the RO was to make two determinations about the 

debt: first validity (expressly including the administrativeerror question), then waiver.

Over a year later, Mr. Duncan filed with the Veterans 

Court a petition for a writ of mandamus, seeking to compel 

the VA to comply with the Board’s remand order. The Veterans Court denied Mr. Duncan’s mandamus petition. 

Duncan v. Wilkie, No. 20-2116, 2020 WL 1921545 

(Vet. App. Apr. 21, 2020). He timely appealed.

II

We turn first to whether a determination the RO made 

during this appeal’s pendency mooted Mr. Duncan’s request for mandamus and, thus, this appeal.

In September 2020, about a month after Mr. Duncan’s 

appeal brief was docketed, the RO issued him a letter responsive to the Board’s remand order. S.A. 8, 10, 16. That 

letter, which included a supplemental statement of the 

case (“SSOC”), informed Mr. Duncan that the VA had audited his debt (finding the accounting essentially correct 

except for a two-dollar adjustment) and maintained its determination that he was not entitled to a waiver.

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DUNCAN v. WILKIE 5

The Secretary suggests that this determination moots

Mr. Duncan’s mandamus petition. Mr. Duncan’s petition 

had requested that the RO comply with the Board’s remand 

order.2 And the RO has now done so, says the Secretary: 

the SSOC explained that the VA “did not change [its] decision” and that Mr. Duncan’s claim “remains denied.” 

S.A. 8. It included “an explanation of the evidence . . . used 

to make the decision,” evidence that included a VA memo 

“upholding [the] validity of [the] incarceration debt.” 

S.A. 12, 16. It explained the basis for denying a waiver. 

See S.A. 14. And it described what would come next: a return to the Board on appeal. See S.A. 8.

Mr. Duncan argues that the RO has not yet made the 

required remand determination. He points out that the 

RO’s decision makes no mention of an “administrative error” determination at all, as the Board’s remand order expressly required, and does not include the “appropriate 

written findings regarding the validity of the debt.” Reply 

Br. 5, 8–9. He points to evidence and arguments that he 

says the RO didn’t consider. And he voices frustration over 

whether the VA will ever address the issue—suggesting 

that next comes administrative “ping pong,” in which “the 

Board again remands the case back to the VA . . . , who 

then takes a couple . . . more years to again respond.” Reply Br. 9. In short, Mr. Duncan argues that the direct appeal pathway would perpetuate a pattern of remand and 

subsequent evasion by the VA, resulting in yet another 

mandamus petition. Reply Br. 9. Indeed, Mr. Duncan suggests that mandamus is necessary to preserve appellate jurisdiction, lest the administrative-error issue never be 

decided at all and thereby evade review. 

2 Mr. Duncan himself describes his petition as asking that “the Secretary” be required “to carry out the 

[Board’s] January 9, 2019 Order.” Appellant’s Br. 4. 

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6 DUNCAN v. WILKIE

Mr. Duncan’s frustration is understandable. The remand order instructed the RO to issue its SSOC deciding 

his waiver only after “the issue regarding whether the overpayment was properly created is resolved to the Veteran’s 

satisfaction, perfected on appeal, or finally denied.” And 

that preliminary question expressly required deciding the 

underlying issue of “administrative error.” Yet the RO’s 

short SSOC makes no mention of an “administrative error”

determination, nor does the accompanying one-page debtvalidity memorandum. See S.A. 8–16. 

What is apparent is that the RO purports to have made

a final remand determination on Mr. Duncan’s claim.3 The 

Secretary insists that Mr. Duncan is taking issue with the 

substance of that determination—a question better suited 

to direct appeal. See Bankers Life & Cas. Co. v. Holland, 

346 U.S. 379, 383 (1953) (“[I]t is established that the extraordinary writs [i.e., mandamus] cannot be used as substitutes for appeals, even though hardship may result from 

delay and perhaps unnecessary trial; and whatever may be 

done without the writ may not be done with it.” (citations 

omitted)). 

Mr. Duncan argues that mandamus is warranted because the direct appeal pathway has caused his case to languish for ten years and prevented him from perfecting his 

appeal. According to Mr. Duncan, the SSOC has exacerbated this issue rather than mooting it. See Martin v. 

O’Rourke, 891 F.3d 1338, 1343 (Fed. Cir. 2018) (“With respect to mandamus petitions alleging unreasonable delay, . . . ‘[b]ecause the statutory obligation of a Court of 

3 The Secretary appears to agree with this characterization. Further, the apparent finality of the RO’s decision is underscored by the fact that the SSOC notified 

Mr. Duncan of his right to respond and noted that if he does 

not respond within 30 days, his appeal will be returned to 

the Board. S.A. 8.

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DUNCAN v. WILKIE 7

Appeals to review on the merits may be defeated by an 

agency that fails to resolve disputes, a Circuit Court may 

resolve claims of unreasonable delay in order to protect its 

future jurisdiction.’” (alteration in original) (quoting Telecomm. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 76 

(D.C. Cir. 1984) (“TRAC”))); FTC v. Dean Foods Co., 

384 U.S. 597, 603 (1966) (noting that the All Writs Act “extends to the potential jurisdiction of the appellate court 

where an appeal is not then pending but may be later perfected”).

This case is like Mote v. Wilkie, 976 F.3d 1337, 1341–42 

(Fed. Cir. 2020). In Mote, the mandamus petition accused 

the VA of unreasonable delay in resolving a claim. After 

that mandamus petition was filed, the Board remanded the 

case to the RO for more factfinding. Noting that “a case 

becomes moot when a claimant receives all [the] requested 

relief,” we held that a mere remand was not the relief the 

petitioner had requested by writ; rather, by requesting a 

“decision,” the petitioner had sought a grant or denial of 

benefits. Id. at 1341. Similarly, here Mr. Duncan specifically requested that the RO expeditiously comply with the 

Board’s 2019 remand order, compliance that includes deciding the administrative-error issue. A partial decision 

that evades one of the issues is not what Mr. Duncan requested, and we cannot say that his petition is moot.

III

Moving from mootness to the merits of mandamus, we 

hold that the RO’s determination while this appeal was 

pending, which elides the administrative-error issue, requires the Veterans Court to reconsider the unreasonabledelay question. 

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8 DUNCAN v. WILKIE

Mr. Duncan’s mandamus petition alleged unreasonable delay.4 Further, in evaluating whether an alleged unreasonable delay is “so egregious as to justify the 

extraordinary writ” of mandamus, the Veterans Court 

must apply the six-factor TRAC standard. Mote, 976 F.3d 

at 1343, 1356; TRAC, 750 F.2d at 80. Those factors provide 

that 

(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.

Martin, 891 F.3d at 1344–45. 

Although it is apparent to us that the Veterans Court 

applied TRAC here, it might be that one or more of these 

factors comes out differently when considering the RO’s apparent sidestep of the merits, especially given the lengthy 

4 Consistent with Martin, because the Veterans 

Court found no unreasonable delay under TRAC, it need 

not have separately analyzed the due process argument 

premised on that delay. 891 F.3d at 1348–49. Overall, we 

see no independent constitutional claim appropriate for review here.

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DUNCAN v. WILKIE 9

history of this case. Indeed, to the extent that the RO’s 

remand determination shows that the RO has evaded answering the administrative-error question (and does not intend to answer it, having called its remand decision final), 

it undermines the soundness of the Veterans Court’s unreasonable-delay evaluation. See Reply Br. 9 (arguing that 

the SSOC is “more evidence and a clear demonstration” of 

the unreasonable delay). 

The Veterans Court did not have the benefit of accounting for the RO’s remand determination when it first ruled. 

Accordingly, under the circumstances of this particular 

case, we vacate the Veterans Court’s decision and remand 

for reconsideration of the mandamus petition in light of 

that development. See Cox v. West, 149 F.3d 1360, 1365–66 

(Fed. Cir. 1998) (remanding to Veterans Court for reconsideration of mandamus petition in light of changed circumstances since denial).

IV

We have considered the parties’ other arguments but 

find them unpersuasive.5 For the reasons above, we vacate 

and remand to the Veterans Court to reconsider Mr. Duncan’s mandamus petition in light of the RO’s intervening 

remand determination.

VACATED AND REMANDED

COSTS

Costs to appellant.

5 Mr. Duncan had requested that the government 

file a supplemental appendix containing specific documents from the record. See Order (Nov. 18, 2020), ECF 

No. 18; Letter (Dec. 15, 2020), ECF No. 25. We have received and considered the supplemental appendix, which 

the government filed on December 2, 2020. 

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