NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EDDY JEAN PHILIPPEAUX,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1741

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-2616, Chief Judge Robert N. 

Davis.

______________________ 

Decided: August 17, 2017

______________________ 

 EDDY JEAN PHILIPPEAUX, Los Angeles, CA, pro se.

 TANYA KOENIG, Commercial Litigation Branch, Civil 

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

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F.

HOCKEY, JR.; Y. KEN LEE, BRANDON A. JONAS, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC.
2 PHILIPPEAUX v. SHULKIN

______________________ 

Before PROST, Chief Judge, O’MALLEY, and CHEN, Circuit Judges.

PER CURIAM. 

Eddy Jean Philippeaux seeks review of the October 5, 

2016 decision of the Court of Appeals for Veterans Claims 

(the “Veterans Court”) denying his petition for a writ of 

mandamus. Philippeaux v. McDonald, No. 16-2616, 2016 

WL 5820496 (Vet. App. Oct. 5, 2016). For the following 

reasons, we affirm the decision of the Veterans Court.

BACKGROUND

Philippeaux served on active duty in the Navy from 

1972 to 1980, and in the Air Force from 1984 to 1985. 

Philippeaux v. McDonald, 657 F. App’x 968, 969 (Fed. Cir. 

2016). He has a relatively lengthy history of disputes and 

appeals relating to that service, but only two of those

claims are relevant to this appeal. First, he was granted 

service connection for “psychotic disorder” with a 50% 

evaluation effective February 27, 1995, and a 100% evaluation effective July 1, 2008. Id. Second, he was granted 

service connection for “gastroesophageal reflux disease 

with gastritis” with a 10% evaluation effective February 

27, 1995. In the Appeal of Eddy J. Philippeaux, No. 11-

17200, 2016 WL 4243624, at *1 (Bd. Vet. App. June 13, 

2016). 

Philippeaux appealed certain aspects of these grants 

to the Board of Veterans’ Appeals (the “Board”), raising 

six specific issues:

1. Entitlement to service connection for traumatic brain injury, to include as secondary to psychotic disorder not otherwise specified.

2. Entitlement to an effective date earlier than 

February 27, 1995, for the grant of service 
PHILIPPEAUX v. SHULKIN 3

connection for psychotic disorder not otherwise 

specified.

3. Entitlement to an initial rating in excess of 10 

percent for gastroesophageal reflux disease 

with gastritis.

4. Entitlement to an effective date earlier than 

February 27, 1995, for the grant of service 

connection for gastroesophageal reflux disease 

with gastritis.

5. Entitlement to a total disability rating based 

on individual unemployability (TDIU) since 

July 1, 2008, based on service connected disabilities other than psychotic disorder not otherwise specified.

6. Entitlement to TDIU prior to July 1, 2008, 

based on all service-connected disabilities.

Id. The Board remanded to the Regional Office on all 

issues, finding that the grants issued had not been “complete grant[s] of the benefits sought on appeal” with 

respect to effective date and rating, and that the TDIU 

claims were not otherwise mooted. Id. at *2 (citing Bradley v. Peake, 22 Vet. App. 280 (2008)). 

Thirty-nine days later, on July 22, 2016, Philippeaux 

petitioned the Veterans Court for a writ of mandamus. 

Philippeaux, 2016 WL 5820496, at *1. In his petition, 

Philippeaux appeared to request that the Veterans Court: 

(1) compel the Regional Office to comply with the Board’s 

remand order; (2) compel the Department of Veterans 

Affairs to process new claims regarding his dependent 

children, including retroactive compensation for various

benefits; (3) compel the Department of Veterans Affairs to 

provide him a complete copy of his claims file; (4) grant an 

earlier effective date for TDIU based on all serviceconnected disabilities; and (5) grant compensation for the 

death of his mother. Id. 
4 PHILIPPEAUX v. SHULKIN

On October 5, 2016, the Veterans Court denied 

Philippeaux’s petition. With respect to Regional Office 

compliance, the Veterans Court found that Philippeaux 

had “not demonstrated that the Secretary has refused to 

act” or that there had “been unreasonable delay in adjudicating his claims,” particularly given the “short time . . . 

passed since the Board remanded his claims.” Id. at *2. 

Regarding the new claims concerning his children and 

mother, the Veterans Court noted that Philippeaux must 

“file a claim for benefits” below “over which [the] Court 

would have jurisdiction,” as “a writ is not a substitute for 

the appeals process.” Id. As for the claims file, the Veterans Court determined that the record established that 

Philippeaux had already received a copy. Id. For those 

reasons, the Veterans Court found, “Mr. Philippeaux has 

not evidenced a clear and indisputable right to the writ.” 

Id.

Philippeaux timely appealed the Veterans Court’s decision to this court. 

DISCUSSION

Our jurisdiction over appeals from the Veterans Court 

is limited by statute. See 38 U.S.C. § 7292(d)(1). Absent 

a constitutional issue, we review only questions of law 

and lack jurisdiction to review factual determinations or 

the application of law to the particular facts of an appeal 

from the Veterans Court. See 38 U.S.C. § 7292(d)(2). 

“This limited jurisdiction extends to our review of the 

Veteran's court dismissal of a petition for a writ of mandamus.” Morgan v. Shinseki, 428 F. App’x 974, 975 (Fed.

Cir. 2011) (citing Lamb v. Principi, 284 F.3d 1378, 1381–

82 (Fed. Cir. 2002)).

The Veterans Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant to the 

All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 

F.3d 1360, 1363–64 (Fed. Cir. 1998). But “[t]he remedy of 

mandamus is a drastic one, to be invoked only in extraor-
PHILIPPEAUX v. SHULKIN 5

dinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist. of 

Cal., 426 U.S. 394, 402 (1976) (citations omitted). Three 

conditions must be met for a court to issue a writ: 

(1) there must be a lack of alternative means for review;

(2) there must be a clear and indisputable right to the 

writ; and (3) the court must be convinced, given the 

circumstances, that issuance of a writ is warranted. 

Beasley v. Shinseki, 709 F.3d 1154, 1157 (Fed. Cir. 2013) 

(citing Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 

380–81 (2004)).

On appeal, Philippeaux’s central argument is that 

“excessive delays in the delivery of due benefits has 

resulted in irreversible damages [and] injury [and] wrongful death of [his] mother.” Appellant Inf. Br. 1. The 

precise nature of this argument is not clear; Philippeaux 

indicates that the Veterans Court did not “decide constitutional issues,” but simultaneously avers that the delay 

in benefits “is in violation of due process [and] equal 

protection.” Id. Regardless, it is due to this allegedly 

excessive delay, Philippeaux contends, that the Veterans 

Court ought to have “grant[ed] [a] writ of mandamus.” 

Id.; see also Appellant Supp. Br. 17–30, 35. 

As his only support for this argument, Philippeaux 

points to the year of his earliest claim filing—1995—and 

concludes that there has been a “twenty-two (22) year[] 

delay in this case in the delivery of all entitled benefits,” a 

delay “beyond reasons or logic.” Appellant Supp. Br. 30. 

Otherwise, Philippeaux provides only vague allegations. 

He states, for example, that “VA Regional Office adjudicators failed to review his claim files” and “failed to take any

action on his appeal,” though he does not specify which 

claims or when. Id. at 33. He similarly implies that “the 

Secretary [has] fail[ed] to act” on his claims or “fail[ed] to 

provide [him] with information or material critical to the 

appeal”—again without further elaboration. Id. at 17. 
6 PHILIPPEAUX v. SHULKIN

These threadbare assertions fail to demonstrate entitlement to the drastic remedy of a writ of mandamus. It 

is well established that “the mere passage of time does not 

give rise to a right to mandamus unless the delay is 

equivalent to an arbitrary refusal to act.” Jackson v. 

Shinseki, 338 F. App’x 898, 901–02 (Fed. Cir. 2009) (citing 

Ribaudo v. Nicholson, 20 Vet. App. 552, 555 (2007) (en 

banc)). Philippeaux relies on the passage of time alone. 

To wit, he acknowledges outright that “the current system 

for adjudicating veterans’ . . . claims satisfies due process 

if it is complied with.” Appellant Supp. Br. 28. Yet he 

has not provided this court with a single instance in 

which those procedures were not followed; he only notes 

the figure of twenty-two years without further specificity. 

Even that twenty-two-year figure, moreover, erroneously 

conflates his various claims, encompassing those on which 

he has already been awarded partial or complete relief as 

well as those relating to his mother and children—first 

raised in the instant petition. 

Irrespective of the delay issue, Philippeaux appears to

separately challenge the Veterans Court’s “fail[ure] to 

decide [his] tort claims” relating to his mother raised in 

the petition. Appellant Inf. Br. 1. As the Veterans Court 

recognized, however, its jurisdiction is strictly limited to 

the review of decisions by the Board. 38 U.S.C. § 7252. 

That jurisdiction is not changed when reviewing petitions 

for writs of mandamus. See Cox v. West, 149 F.3d 1360, 

1363 (Fed. Cir. 1998) (“It is well established that the [All 

Writs Act] does not expand a court’s jurisdiction.”). An 

examination of the record indicates that Philippeaux 

raised no such tort claim before the Board; the Veterans 

Court thus properly refused to consider it for the first 

time on appeal. See, e.g., Morris v. Nicholson, 122 F. 

App’x 473, 475 (Fed. Cir. 2005). 
PHILIPPEAUX v. SHULKIN 7

CONCLUSION

After full review of the record and careful consideration, we find no error in the Veterans Court’s decision to 

deny Philippeaux’s petition for a writ of mandamus. 

Therefore, we affirm.

AFFIRMED