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Martin v. O'Rourke

United States Court of Appeals, Federal Circuit

June 7, 2018

JOHN MARTIN, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee WILLIAM RHODES, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee EUGENIA MOTE, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee THOMAS MEISSGEIER, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee HUGH D. MATTHEWS, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee BETTY D. SCYPHERS, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee SARAH AKTEPY, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee FRANTZ M. JEAN, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee MARVIN MYERS, Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeals from the United States Court of Appeals for Veterans Claims in Nos. 16-2493, 16-2495, 16-2500, 16-2502, 16-2503, 16-2504, 16-2506, 16-2507, 16-2511, Judge William S. Greenberg.

          John Aubrey Chandler, King & Spalding LLP, Atlanta, GA, argued for claimants-appellants. Also represented by Elizabeth Vranicar Tanis; Christopher Robert Healy, Washington, DC; Thomas G. Hentoff, Liam James Montgomery, Stephen Raber, Williams & Connolly LLP, Washington, DC.

          Alexander Orlando Canizares, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D. Griffin, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Before Prost, Chief Judge, Schall and Moore, Circuit Judges.

          OPINION

          Prost, Chief Judge

         The nine individual appellants in this consolidated appeal are veterans or spouses of veterans who have appealed the Department of Veterans Affairs' ("VA") denial of their claims for service-connected disability benefits. Based on delays that have occurred in each of their cases, Appellants petitioned for writs of mandamus, asking the U.S. Court of Appeals for Veterans Claims ("Veterans Court") for relief. The Veterans Court denied the petitions. Although we do not opine as to whether we agree with the Veterans Court's conclusion in each case, we hold that the Veterans Court did not apply the proper standard for evaluating mandamus petitions based on unreasonable delay. Accordingly, we vacate the denial of the mandamus petitions in certain cases and remand for additional consideration.

         I

         Veterans are entitled to compensation "[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war." 38 U.S.C. § 1110; see id. § 1121 (wartime death compensation for designated heirs and dependents); id. § 1131 (peacetime disability compensation); id. § 1141 (peacetime death compensation for designated heirs and dependents). "Veteran's disability benefits are nondiscre-tionary, statutorily mandated benefits, " and a veteran is entitled to such benefits if he or she satisfies the eligibility requirements. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009).

         A veteran begins the process of seeking benefits by filing a claim with a VA regional office. If the veteran receives an unfavorable "rating decision" from the regional office (e.g., a denial of a claim for disability benefits), he or she begins the appeal process by filing a Notice of Disagreement. See 38 U.S.C. § 7105(a). Once a Notice of Disagreement is filed, [1] the VA then issues the next document required in the appeal process-the Statement of the Case ("SOC"). On average, the VA takes 500 days to prepare the SOC.[2] Suppl. App. 4095. After receiving the SOC, a veteran may then file a notice of appeal with the BVA, also known as a "Form 9." See 38 C.F.R. § 19.30(b).

         Once the veteran files a Form 9, the VA completes a Certification of Appeal. See 38 C.F.R. § 19.35. The certification process appears to take the VA about two and a half hours to complete, on average. J.A. 508. Nonetheless, veterans wait an average of 773 days for the VA to issue the Certification of Appeal, plus an additional 321 days for the VA to transfer the certified appeal to the BVA for docketing. Suppl. App. 4095; see 38 C.F.R. § 19.36. In contrast to preparation of the SOC, for which there is arguably an explanation for some delay, it is unclear to us why this two-and-a-half-hour certification process takes an average of 773 days to complete-and the government has not provided an explanation. And the average 321-day delay that occurs when the VA transfers the certified appeal to the BVA is even more mysterious. The govern- ment, again, has not explained the cause of this delay, even though the transfer process appears to consist of simply transferring appellate records.

         After these often-significant periods of delay, the BVA will issue its decision. Overall, the average time from the filing of a Notice of Disagreement to issuance of a BVA decision is over five years. Suppl. App. 4095.

         The BVA's decision may then be appealed to the Veterans Court, 38 U.S.C. § 7252(a), and that decision may then be appealed to this court, id. §§ 7252(c), 7292.

         II

         Appellants, along with eight other veterans, petitioned the Veterans Court to issue writs of mandamus in response to alleged unreasonable delays in each of their cases.[3] Appellants' mandamus petitions are substantially identical. Each broadly discusses the delays experienced by veterans awaiting resolution of their disability benefits claims with the VA. For example, the petitions allege that "[a] veteran whose disability benefits are denied by the VA wait[s], on average, 1448 days from the time the VA denies the veteran's request for benefits to the time that the [BVA] rules on the veteran's appeal." E.g., J.A. 101. Appellants argue that this approximately four-year delay violates due process. Id. Each mandamus petition only briefly addresses the facts of the individual petitioner's case. See, e.g., J.A. 104-05.[4]

         The Veterans Court entered final judgments denying Appellants' petitions between January and March 2017, and each Appellant timely appealed. We have jurisdiction under 38 U.S.C. § 7292. See Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 2002).

         III

         This court's jurisdiction to review decisions of the Veterans Court is limited. 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." 38 U.S.C. § 7261(d)(2). This court does, however, have jurisdiction to "decide all relevant questions of law, including interpreting constitutional and statutory provisions." Id. § 7261(d)(1).

         Appellants raise two arguments on appeal: first, that the Veterans Court should have applied a different legal standard to analyze their mandamus petitions based on unreasonable delay; and second, that the Veterans Court improperly denied their due process claims. Based on these arguments, Appellants ask this court to enter an order finding the delays suffered by Appellants unconstitutional and directing the Secretary to eliminate unreasonable delay. Alternatively, Appellants ask us to remand these cases with instructions to apply a different legal standard when analyzing unreasonable delay.

         A

         Appellants' claims of unreasonable delay arise by way of mandamus petitions filed in each of their individual cases. Under the All Writs Act, "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). This power extends to the Veterans Court. Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998). Although "[t]he All Writs Act is not an independent basis of jurisdiction, " Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1565 (Fed. Cir. 1983), it allows courts to issue writs "in aid of their respective jurisdictions, " 28 U.S.C. § 1651(a).

         With respect to mandamus petitions alleging unreasonable delay, the U.S. Court of Appeals for the D.C. Circuit has explained that "[b]ecause the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction." Telecomms. Research & Action Ctr. v. FCC ("TRAC"), 750 F.2d 70, 76 (D.C. Cir. 1984); see also FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (noting that the All Writs Act "extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected"). Mandamus is thus an appropriate procedural vehicle to address claims of unreasonable delay in this context.[5]

         The statute that outlines the Veterans Court's scope of review, 38 U.S.C. § 7261, states:

(a) In any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented, shall-
. . .
(2) compel action of the Secretary unlawfully withheld or unreasonably delayed . . . .

38 U.S.C. § 7261(a)(2). This statute was derived from the similar scope of review statute in the Administrative Procedure Act ("APA"). See 5 U.S.C. § 706(1) ("[T]he reviewing court shall . . . (1) compel agency action unlawfully withheld or unreasonably delayed."); S. Rep. No. 100-418, at 60 (1988) ("[T]he other major scope of review provisions contained in proposed section 4026(a)(1) through (a)(3) are derived specifically from section 706 of the APA. Thus, it is the Committee's intention that the court shall have the same authority as it would in cases arising under the APA to review and act upon questions other than matters of material fact made in reaching a decision on an individual claim for VA benefits . . . .").[6]

         Section 7261 provides the standards the Veterans Court must use when reviewing actions of the Secretary. In this case, Appellants allege that the Secretary has unreasonably delayed action on their claims for disability benefits. The question becomes: how should the Veterans ...


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