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.
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.
Prost, Chief Judge, Schall and Moore, Circuit Judges.
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
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).
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,  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. 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. §
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
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.
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),
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. 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.
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).
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).
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.
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).
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
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 . . . .").
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 ...