In Re RUSH , No. 23-142 (Fed. Cir. 2023)
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Case: 23-142 Document: 9 Page: 1 Filed: 10/18/2023 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ In re: THOMAS L. RUSH, Petitioner ______________________ 2023-142 ______________________ On Petition for Writ of Mandamus to the United States Court of Appeals for Veterans Claims in Nos. 15-4845 and 22-1168, Senior Judge Lawrence B. Hagel. ______________________ ON PETITION AND MOTION ______________________ Before REYNA, TARANTO, and HUGHES, Circuit Judges. PER CURIAM. ORDER Thomas L. Rush has filed a petition seeking a writ of mandamus directing various relief. He also moves to proceed in forma pauperis with regard to the petition. In 2016, the United States Court of Appeals for Veterans Claims (“CAVC”) entered judgment in CAVC No. 154845 dismissing Mr. Rush’s appeal from the denial of his benefits claims for lung and heart disorders. In February 2023, the CAVC also entered judgment in CAVC No. 221168 affirming the denial of Mr. Rush’s benefits claim for Case: 23-142 Document: 9 2 Page: 2 Filed: 10/18/2023 IN RE: RUSH a cardiovascular disorder. Mr. Rush did not file a timely appeal from either of those cases. Mr. Rush’s petition now seeks, inter alia, payment of his claim in CAVC No. 15-4845 and the “declassification” of CAVC No. 22-1168. * ECF No. 2 at 1. But mandamus is an extraordinary remedy, available only where the petitioner shows: (1) a clear and indisputable right to relief; (2) there are no adequate alternative legal channels through which he may obtain that relief; and (3) the grant of mandamus is appropriate under the circumstances. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004). Mr. Rush has not met that standard here. Generally, “[m]andamus relief is not appropriate when a petitioner fails to seek relief through the normal appeal process.” In re Fermin, 859 F. App’x 904, 905 (Fed. Cir. 2021); see also Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943) (finding that mandamus “may not appropriately be used merely as a substitute for the appeal procedure”); In re Pollitz, 206 U.S. 323, 331 (1907) (explaining “mandamus cannot . . . be used to perform the office of an appeal”). Because Mr. Rush did not timely raise his challenges in a normal appeal, mandamus is not appropriate here. Accordingly, Mr. Rush also requests the removal of an attorney “imposed on him secretly.” ECF No. 2 at 1. However, the CAVC’s February 2023 decision noted that Mr. Rush was “[s]elf-represented.” Id. at 4. * Case: 23-142 Document: 9 Page: 3 Filed: 10/18/2023 IN RE: RUSH 3 IT IS ORDERED THAT: The petition and all pending motions are denied. FOR THE COURT October 18, 2023 Date
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