NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

VARIETA O. MARTIN MCLEAN,

Petitioner-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2019-1508

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-4905, Judge Michael P. Allen.

______________________ 

Decided: July 22, 2019

______________________ 

VARIETA O. MARTIN MCLEAN, Victorville, CA, pro se. 

 ROBERT C. BIGLER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT 

EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRYAN 

THOMPSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 
2 MCLEAN v. WILKIE

Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.

PER CURIAM. 

Varieta O. Martin McLean appeals from a decision of 

the United States Court of Appeals for Veterans Claims 

(“Veterans Court”) dismissing McLean’s petition for extraordinary relief in the form of a writ of mandamus. 

McLean v. Wilkie, No. 18-4905, 2018 U.S. App. Vet. Claims 

LEXIS 1511 (Vet. App. Nov. 16, 2018). Because McLean 

challenges only factual findings and the application of law 

to fact, we dismiss for lack of jurisdiction. 

BACKGROUND

McLean is a veteran of the United States Air Force who

served on active duty at the March Air Force Base in California. After her service, she applied to her Regional Office 

(“RO”) seeking entitlement to service connection for various ailments. Suppl. A. at 29–30. The RO denied her 

claims, and McLean appealed to the Board of Veterans’ Appeals. In June of 2017, the Board remanded McLean’s case 

back to the RO with instructions to further develop the record and readjudicate the appeal. The Board also directed 

the RO to return the case to the Board for comprehensive 

review of the entire record should the RO again deny any 

of McLean’s claims. Suppl. A. at 49. 

In July of 2018, McLean sent letters to the Board and 

the Veterans Court expressing concerns regarding the delay in adjudicating her remanded claims. Suppl. A. at 49; 

McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at * 1. 

The Veterans Court construed her letter as a petition for a 

writ of mandamus, but found that the petition was noncompliant because it did not “include an appendix containing 

copies of any order or decision or other documents necessary to understand and support the petition.” McLean, 

2018 U.S. App. Vet. Claims LEXIS 1511, at *1. The Veterans Court granted McLean twenty-one days to file a 
MCLEAN v. WILKIE 3

compliant corrected petition. Meanwhile, the Board responded to McLean’s letter on August 2, 2018, assuring her 

that it had forwarded her correspondence to the RO for direct reply and that, should the RO transfer the case back 

to the Board, it would adjudicate her appeal promptly. 

Suppl. A. at 49. 

On September 20, 2018, the RO sent a letter to McLean 

notifying her that it had complied with the Board’s instruction to further develop the record and enclosing a Supplemental Statement of the Case. Suppl. A. at 15. The RO 

again denied McLean’s claims and stated that the case 

would be returned to the Board within thirty days of the 

RO’s decision. Suppl. A. at 15, 29–30. 

On October 11, 2018, the Veterans Court received another letter from McLean. Although the letter was again 

noncompliant, the Veterans Court “construe[d it] as a 

timely substitute petition for extraordinary relief.” 

McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at *1. It 

noted that McLean failed to attach necessary supporting

documents,1 but concluded that there was “enough information” from McLean’s letter to discuss the merits of her 

request. Id. It also accepted McLean’s allegations as true 

and concluded that it did not need a response from the Secretary to resolve the matter. Id. at *3. 

In a decision dated November 16, 2018, the Veterans 

Court denied McLean’s petition. Although the Veterans 

Court acknowledged its authority to issue extraordinary 

writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a), it

 

1 For example, McLean failed to provide the Veterans Court with the above-referenced Supplemental Statement of the Case. See Suppl. A. at 12–13. On July 1, 2019, 

we requested that the government provide this document

in connection with this appeal. The government so supplemented the appendix on July 8, 2019. 
4 MCLEAN v. WILKIE

explained that it is “a ‘drastic’ remedy that the Court will 

invoke only in extraordinary circumstances.” Id. at *2

(quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976)). 

The Veterans Court further explained that three conditions must be met before it could issue the writ: (1) “the 

petitioner must show a lack of adequate alternative means 

of obtaining the relief sought;” (2) “the petitioner must 

show a clear and indisputable right to the writ;” and (3) the 

court must be convinced that the writ is appropriate under 

the circumstances. Id. (citing Cheney v. U.S. Dist. Court, 

542 U.S. 367, 380–81 (2004)). The Veterans Court then applied the factors from Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984), 

which this court has adopted “as the appropriate standard 

for the Veterans Court to use in evaluating mandamus petitions based on alleged unreasonable delay.” Martin v. 

O’Rourke, 891 F.3d 1338, 1348 (Fed. Cir. 2018). 

Applying the TRAC factors to the facts in McLean’s 

case, the Veterans Court concluded that the delay was not 

“so egregious that it warrants a writ of mandamus.” 2018 

U.S. App. Vet. Claims LEXIS 1511, at *5. The court

acknowledged that McLean’s “claim was remanded . . . and 

that, on some level the . . . delay is unreasonable.” 

Id. at *4. But it balanced this finding against the fact that 

the Supplemental Statement of the Case sent in 2018 appeared to end that delay and the fact that McLean could 

still appeal that decision. Id. Accordingly, the Veterans 

Court dismissed the petition. McLean appeals. 

DISCUSSION

Our jurisdiction to review Veterans Court decisions is 

limited by statute. Pursuant to 38 U.S.C. § 7292(a), we

may review “the validity of a decision of the [Veterans] 

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 [Veterans] 

Court in making the decision.” Except with respect to 
MCLEAN v. WILKIE 5

constitutional issues, we “may not review (A) a challenge 

to a factual determination, or (B) a challenge to a law or 

regulation as applied to the facts of a particular case.” 

§ 7292(d)(2). 

This limited jurisdiction extends to our review of the 

Veterans Court’s dismissal of a petition for a writ of mandamus. See Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. 

Cir. 2013); see also Lamb v. Principi, 284 F.3d 1378, 1381–

82 (Fed. Cir. 2002). Specifically, we have jurisdiction “to 

review the [Veterans Court’s] decision whether to grant a 

mandamus petition that raises a non-frivolous legal question,” but cannot “review the factual merits of the veteran’s 

claim.” Beasley, 709 F.3d at 1158. Nor can we interfere 

with the Veterans Court’s “role as the final appellate arbiter of the facts underlying a veteran’s claim or the application of veterans’ benefits law to the particular facts of a 

veteran’s case.” Id. 

Here, McLean’s appeal presents only issues challenging factual determinations and the application of law to 

fact. In her informal brief, McLean states that the Veterans Court “knowingly made amoral, untrue, [and] unsubstantiated statements.” Appellant’s Informal Br. at 1. This 

is a challenge to the Veterans Court’s factual determinations. McLean also continues to argue on appeal that the 

delay in resolving her case is unreasonable. This is a challenge of the Veterans Court’s application of the factors outlined in TRAC to the facts in this case.2 And, although 

 

2 We note that certain facts recited in McLean’s petition, which the Veterans Court accepted as true when 

denying mandamus, were inaccurate. For instance, 

McLean’s petition stated that the Board remanded 

McLean’s case in 2015 to the RO, where it was pending for 

three years before McLean received the Supplemental 

Statement of the Case in 2018. Suppl. A. at 12; 2018 U.S. 

App. Vet. Claims LEXIS 1511, at *5. But, as is clear from 
6 MCLEAN v. WILKIE

McLean states that military records were “interfered with 

and removed . . . which is an amoral, illegal and unconstitutional offense,” Appellant’s Informal Br. at 5, that statement alone is insufficient to raise a constitutional 

challenge, especially when no such challenge was raised 

before the Veterans Court. Accordingly, we lack jurisdiction over McLean’s appeal. 

CONCLUSION

Because McLean’s appeal presents only challenges to 

factual determinations and the application of law to fact, 

we dismiss for lack of jurisdiction. 

DISMISSED

COSTS

No costs.

 

the Supplemental Statement of the Case, the Board remanded McLean’s appeal in June of 2017. Suppl. A. at 19. 

The duration of any purported delay between the remand 

and the Supplemental Statement of the Case was thus only 

a little over a year. This further weakens McLean’s claim 

that the delay was unreasonable.