N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CYNTHIA A. TORREZ, Claimant

- Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2023

- 1945

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 22

- 4907, Judge Scott Laurer.

______________________

Decided: April 1 8 , 2024

______________________

C YNTHIA A. T ORREZ , San Antonio, TX, pro se.

M ARIANA T ERESA A CEVEDO , Commercial LitigationBranch, Civil Division, United States Department of Justice, Washington, DC, for respondent

- appellee. Also represented by B RIAN M. B OYNTON , T ARA K. H OGAN , P ATRICIA M. M C C ARTHY ; B RIAN D. G RIFFIN , Y. K EN L EE , A NDREW J. S TEINBERG , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________ Case: 23-1945 Document: 21 Page: 1 Filed: 04/18/2024TORREZ v. MCDONOUGH 2

Before M OORE , Chief Judge

, L OURIE , Circuit Judge, and A LBRIGHT , District Judge

. ∗

P ER C URIAM

. Cynthia A. Torrez appeals an order from the Court of Appeals for Veterans Claims (Veterans Court) denying her petition for a writ of mandamus

. We affirm

- in

- part and dismiss

- in

- part

. B ACKGROUND

Ricardo Torrez served on active duty in the United States Air Force from June 1979 to May 1995

. Appx. 30

. 1 In January 2011 , he filed requests with the Department of Veterans Affairs (VA) seeking service connection for at least thirteen disabi lities

, request ing to reopen previously denied service connection claim s for five disabilities

, and request ing increased ratings for two disabilities

. In July 2011, Mr. Torrez passed away. Mrs. Torrez , his surviving

spouse, subsequently sought service connection for Mr. Torrez’s cause of death. Appx. 43.
In April 2013, the VA regional office (RO) granted service connection for two claims and denied the remain ing claims

. Mrs. Torrez appealed to the Board of Veterans’ Appeals (Board)

. T he Board remanded the claims to the RO twice for further development, first in June 2015 and again in May 2018

. In October 2020, the Board denied the claims. Mrs. Torrez appealed to the Veterans Court . In April 2022, the

∗ Honorable Alan D Albright, District Judge, UnitedStates District Court for the Western District of Texas, sitting by designation.

1 “Appx.” refers to the Appendix attached to Respondent’s Informal Brief. Case: 23-1945 Document: 21 Page: 2 Filed: 04/18/2024TORREZ v. MCDONOUGH 3

Veterans Court affirmed the Board’s denial of some claims and remanded the remaining claims for further development and adjudication

. Mrs. Torrez appealed to this court

, and we affirmed the Veterans Court’s decision. Appx. 3 ; see also Torrez v. McDonough

, No. 20 22

- 1909

, 2022 WL 16908625 (Fed. Cir. Nov. 14, 2022)

. In August 2022, Mrs. Torrez petitioned the Veterans Court alleging the Board unreasonably delayed adjudicating the claims remanded in the court’s April 2022 decision and seeking extraordinary relief by writ of mandamus

. Appx. 1, 3. T he Veterans Court evaluated the merits of Mrs. Torrez’s mandamus petition and applied the legal framework from Telecommunications Research & Action Center v. FCC , 750 F.2d 70, 79

– 80 (D.C. Cir. 1984) ( TRAC ), which outlines six factors for the c ourt to consider whenanalyzing mandamus petitions based on alleged unreasonabl e delay by the VA. Appx. 3– 4; s ee also Martin v. O’Rourke , 891 F.3d 1338, 1344

– 45 (Fed. Cir. 2018). The
court denied the mandamus petition because it found the VA’s alle ged delay in developing and adjudicating Mrs. Torrez’s claims was not so unreasonable as to warrant a writ of mandamus. Appx. 5. Mrs. Torrez appeals.

D ISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute

. See 38 U.S.C. § 7292. 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 [Vetera ns] Court in making the decision.” 38 U.S.C. § 7292(a). Unless the appeal presents a constitutional issue, 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 ca se.” 38 U.S.C. § 7292(d)(2). We have jurisdiction to review the Veterans Court’s rulings on mandamus petitions

. See Lamb v. Principi , 284 F.3d 1378, 1381 (Fed. Cir. Case: 23-1945 Document: 21 Page: 3 Filed: 04/18/2024TORREZ v. MCDONOUGH 4

2002)

. We review a denial of mandamus for abuse of discretion. Id. at 1384.

When an al legedly unreasonable delay is the basis of a mandamus petition, the Veterans Court analyze s the petition’s merits under the framework articulated in TRAC

. See Martin , 891 F.3d at 1344

– 45 (quoting TRAC , 750 F.2d at 80)

. TRAC sets forth six factors to consider:
(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 courtshould 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 h old that agency action is unreasonably delayed.

Id.

I

T he Veterans Court did not commit legal error or abuse its discretion in denying the mandamus petition

. The Veterans Court properly applied the TRAC factors to assess whether Mrs. Torrez was entitled to a writ compelling the VA to more expeditiously process her claims seeking service connection for several disabilities. Appx. 4

– 5. It found the first, second, fourth, and sixth TRAC factors weighed against issuing a wri t; al though the third and fifth TRAC factors favor ed a writ, those factors d id not outweigh the others

. Id. Case: 23-1945 Document: 21 Page: 4 Filed: 04/18/2024TORREZ v. MCDONOUGH 5

Specifically, the Veterans Court found that, al though the nature and extent of Mrs. Torrez’s interest weighed in favor of issuing a writ (third and fifth TRAC factors) , the VA’s delay was inherent in the adjudication and development of veterans ’ benefits claims

. Id. It explained that much of the delay result ed from the VA’s compliance withits legal duty to help Mrs. Torrez obtain the necessary medical records to develop her claims (first TRAC factor) ; that Congress did not establish a timeline for agency adjudication claims (second TRAC factor) ; that a judicial mandate forc ing the VA to work faster would shift the VA ’ s resources from other veterans ahead of Mrs. Torrez in the Board’s

queue system , effectively allowing Mrs. Torrez to cut in line ( fourth TRAC factor) ; and that there was no reason to think the VA had acted wrongfully (six th TRAC factor)

. Id. The Veterans Court therefore determined issuance of a writwas not justified because the VA had not unreasonably delayed. Id. at 5.

Mrs. Torrez does not show the Veterans Court abused its discretion in reaching its conclusion

, especially considering the demanding standard for mandamus. Nor does she allege any legal error. We may not review the Veterans Court’s straightforward application of the TRAC factors to the particular facts of this case unless there is a constitutional claim, s ee 38 U.S.C. § 7292 , and here, there is no constitutional claim

. II
Mrs. Torrez requests relief in the form of her husband’s disability pension. See Appellant’s Informal Br

. at 3. To the extent Mrs. Torrez’s appeal raises arguments concerning the merits of her underlying service connection claims for various disabilities , it is outside the scope of our review.When a veteran or beneficiary petitions for a writ of mandamus, we “may not review the factual merits ” of the underlying claim

, “ but we may determine whether the petitioner has satisfied the legal standard for issuing the Case: 23-1945 Document: 21 Page: 5 Filed: 04/18/2024TORREZ v. MCDONOUGH 6

writ.” Beasley v. Shinseki , 709 F.3d 1154, 1158 (Fed. Cir. 2013)

. In particular, “we do not 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. ; see also 38 U.S.C. § 7292(d)(2).

To the extent Mrs. Torrez’s request for disability pension refers to her earlier claims that the Board denied and the Veterans Court affirmed, Appx. 25

– 26, we have already affirmed the Veterans Court’s decision. Appx. 3; see also Torrez

, 2022 WL 16908625

, at * 4. To the extent Mrs. Torrez’s request for disability pension refers to her e arlier claims that the Veterans Court remanded , Appx. 25, each of those claims is currently on remand to the Board for further adjudication and development. Appx. 3, 4. The Veterans Court has not yet rendered a decision on those claims, so we lack jurisdiction to address them

. See 38 U.S.C. § 7292. O ur jurisdiction here is limited to the propriety of the Veterans Court’s denial of the mandamus petition. Therefore, we d ismiss Mrs. Torrez’s other claims and requests for relief

. C ONCLUSION For the foregoing reasons, we affirm the Veterans Court’s denial of mandamus, and we dismiss the appeal as to other issues

. AFFIRMED IN PART AND DISMISSED IN PART

C OSTS

No costs. Case: 23-1945 Document: 21 Page: 6 Filed: 04/18/2024