NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

EDDY JEAN PHILIPPEAUX,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1774

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-720, Judge Coral Wong Pietsch.

______________________ 

Decided: September 7, 2021 

______________________ 

EDDY JEAN PHILIPPEAUX, Miami, FL, pro se.

 BORISLAV KUSHNIR, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH 

MARIE HOSFORD; AMANDA BLACKMON, Y. KEN LEE, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC.

 ______________________ 

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2 PHILIPPEAUX v. MCDONOUGH

Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.

PER CURIAM. 

Eddy Jean Philippeaux appeals from a decision of the 

Court of Appeals for Veterans Claims (“Veterans Court”) 

denying his petition for a writ of mandamus in Philippeaux 

v. McDonough, Case No. 21-720 (Vet. App. Feb. 23, 2021). 

We affirm. 

I. BACKGROUND

Mr. Philippeaux served on active duty in the United 

States Navy from 1972 to 1980. In 1977, while stationed 

aboard the U.S.C. McCandless, Mr. Philippeaux hit his 

head and suffered a minor laceration. He received two sutures and returned to duty. Three years later he was honorably discharged from the Navy. 

In 2009, Mr. Philippeaux filed a claim for disability 

compensation for traumatic brain injury (“TBI”) which he 

alleges he suffered when he hit his head in 1977. That 

claim has a lengthy procedural history, only a portion of 

which is relevant to this appeal. On March 16, 2018, the 

Board of Veterans’ Appeals (“Board”) denied Mr. 

Philippeaux’s claim of entitlement to service connection for 

TBI and TBI residuals, including hyperthyroidism. Mr. 

Philippeaux appealed that denial to the Veterans Court. 

In 2019, the Veterans Court remanded Mr. 

Philippeaux’s claim to the Board because the Board failed 

to address evidence favorable to Mr. Philippeaux in its 

analysis. Mr. Philippeaux appealed that remand order to 

this court. We dismissed because the remand order was 

not an appealable final decision. Philippeaux v. Wilkie, 814 

F. App’x 603, 604 (Fed. Cir. 2020).

On remand, Mr. Philippeaux asked the Board to vacate 

its March 16, 2018 decision because it had failed to adjudicate a claim for hyperthyroidism. The Board denied his 

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PHILIPPEAUX v. MCDONOUGH 3

motion, explaining that the hyperthyroidism claim was not 

before it at the time of the March 16, 2018 decision. 

On February 1, 2021, Mr. Philippeaux filed a petition 

for a writ of mandamus in the Veterans Court. He argued 

that the Board wrongly denied his motion to vacate and 

that the Department of Veterans Affairs (“VA”) had unreasonably delayed implementation of the Veterans Court’s 

August 26, 2019 remand order. 

The Veterans Court denied the petition. As to Mr. 

Philippeaux’s first argument, the Veterans Court found 

that mandamus was inappropriate because any challenge 

to the March 16, 2018 board decision, including challenges 

that the Board failed to adjudicate a hyperthyroidism 

claim, could be resolved through the regular appeals process. As to Mr. Philippeaux’s second argument, the Veterans Court found that Mr. Philippeaux had “failed to show 

that VA has unreasonably delayed implementing [the Veterans Court’s] decision” and that any delay “was partially 

due to Mr. Philippeaux appealing that matter to the Federal Circuit and not the fault of VA.” S. App. 4–5.1

Mr. Philippeaux timely appealed. 

II. DISCUSSION

This court has limited subject matter jurisdiction over 

appeals from the Veterans Court. 38 U.S.C. § 7292. We 

have jurisdiction to review “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.” Id. at § 7292(a). We do not have jurisdiction to “review findings of fact or application of law to 

1 All S. App. citations refer to the Supplemental Appendix filed by the United States in this appeal, Dkt. No. 

22. 

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4 PHILIPPEAUX v. MCDONOUGH

the facts, except to the extent that an appeal presents a 

constitutional issue.” Cayat v. Nicholson, 429 F.3d 1331, 

1333 (Fed. Cir. 2005) (citing 38 U.S.C. § 7292(d)(2)). 

Within those constraints, we have jurisdiction to review 

the Veterans Court’s rulings on mandamus petitions. 

Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir. 2002). We 

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

1384.

Mr. Philippeaux devotes much of his briefs to arguments concerning the merits of his underlying disability 

claim. But the merits of his claim were not at issue before 

the Veterans Court in the decision on appeal here and 

therefore are not properly before this court. Even if the 

Veterans Court had determined the merits of Mr. 

Philippeaux’s claim, we would not have jurisdiction to review the Veterans Court’s factual findings under 38 U.S.C. 

§ 7292. 

In reviewing the Veterans Court’s denial of mandamus, 

we may only ask “whether the petitioner has satisfied the 

legal standard for issuing the writ.” Beasley v. Shinseki, 

709 F.3d 1154, 1158 (Fed. Cir. 2013). To prevail on his request for the extraordinary writ of mandamus, Mr. 

Philippeaux was required to show that (1) he has a clear 

and indisputable legal right to the writ, (2) he has no other 

adequate avenue of obtaining relief, and (3) the writ is warranted under the circumstances. See Cheney v. U.S. Dist. 

Court, 542 U.S. 367, 380–81 (2004). 

The Veterans Court denied Mr. Philippeaux’s request 

because he did not show that he had no other adequate avenue of obtaining his requested relief. We find that the 

Veterans Court’s finding that an adequate alternate avenue of relief exists is neither legally incorrect nor an abuse 

of discretion. Should Mr. Philippeaux be unsatisfied with 

the Board’s determination on his claim, including any failure to address his claim of hyperthyroidism, he may appeal 

the Board’s determination in the normal course. Moreover, 

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PHILIPPEAUX v. MCDONOUGH 5

in its remand order, the Veterans Court instructed the 

Board to “consider any such relevant evidence and argument” that Mr. Philippeaux introduces as to the remanded 

matters. S. App. 12. Thus, to the extent that Mr. 

Philippeaux has not previously raised his hyperthyroidism 

claim, he may do so on remand. And he may appeal any 

Board determination on that claim in the normal course, 

rendering mandamus improper. Mandamus is an extraordinary remedy that should “not be used as a substitute for 

the regular appeals process.” Cheney, 542 U.S. at 380–81.

Mr. Philippeaux also requested mandamus to rectify 

the Board’s allegedly unreasonable delay in processing his 

claim on remand.2 The Veterans Court found that Mr. 

Philippeaux had “failed to show that VA has unreasonably 

delayed implementing” the Veteran’s Court’s August 26, 

2019 remand order. Indeed, the Veterans Court found that 

any delay in implementing the remand order “was partially 

due to Mr. Philippeaux appealing the matter to the Federal 

Circuit and not the fault of VA.” S. App. 4. We find no 

error in the Veterans Court’s holding. The Board must 

treat Mr. Philippeaux’s claims expeditiously on remand. 

See 38 U.S.C. § 7112. It does not appear that the Board 

has failed to do so. 

The Board had just a few months to adjudicate Mr. 

Philippeaux’s claim after remand. Its failure to complete 

that process within that short time frame is not unreasonable under the circumstances of this case. The Veterans 

Court issued its remand order on August 26, 2019. On January 10, 2020, Mr. Philippeaux filed a notice of appeal from 

2 Mr. Philippeaux argues only that the Board has not 

promptly considered the issue on remand. We cabin our 

analysis to that narrow question. We do not address 

whether the VA has unreasonably delayed the disposition 

of Mr. Philippeaux’s claim at any other point since he originally filed the claim over a decade ago. 

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6 PHILIPPEAUX v. MCDONOUGH

that remand decision before this court. On August 4, 2020, 

we dismissed that appeal. Philippeaux, 814 F. App’x 603. 

After that appeal, the Veterans Court issued its mandate 

on October 6, 2020, releasing jurisdiction back to the 

Board. Less than four months later, on February 1, 2021, 

Mr. Philippeaux filed his petition seeking a writ of mandamus. Thus, it appears that the Board had slightly more 

than four months (between August 26, 2019 and January 

10, 2020) and a second instance of just under four months 

(October 6, 2020 to February 1, 2021) in which to adjudicate Mr. Philippeaux’s claim. Contrary to Mr. 

Philippeaux’s argument, the Board did not have jurisdiction to proceed with his claim while the case was before the 

Veterans Court or this court on appeal. See Graves v. Principi, 294 F.3d 1350, 1352 (Fed. Cir. 2002). Under these circumstances, we find no legal error or abuse of discretion in 

the Veterans Court’s finding that Mr. Philippeaux “failed 

to show that VA has unreasonably delaying implementing” 

the remand order. S. App. 5. 

III. CONCLUSION

We have considered Mr. Philippeaux’s remaining arguments and conclude that they are without merit. For the 

reasons discussed above, we affirm the Veterans Court. 

AFFIRMED

COSTS

No costs.

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