Martin: Battling Unreasonable Delays and Using a Writ to Expedite Your Claim

Martin et al v. O’Rourke, ___ F.3d. ___ (Fed. Cir. 2018), Opinion Number 2017-1747 et al is a Federal Circuit decision dated June 7, 2018 and notable as it clarifies a more liberal standard for granting writs and thus expediting your claim or forcing the VA to actually make a decision.

This is actually a series of cases that were all combined for this decision and hearing. The veterans had sought a writ of mandamus asking the Veterans Court for relief after unreasonable delays by the VA (i.e., the veterans were asking the Veterans Court to force the VA to render a decision).  The Veterans Court denied the request, but the Federal Circuit held the Veterans Court applied an improper standard for evaluating these writs based on unreasonable delay.

First, you should know the Veterans Court has the power to hear and grant writs of mandamus forcing the VA to act.  But, the Veterans Court is usually very reluctant to grant these requests when they are based on unreasonable delay by the VA.  The past rationale has basically been that the courts should not tell a cabinet agency how to employ their limited resources to make decisions.

The Federal Circuit began by discussing the long time it takes for the VA to handle appeals.  It noted that after a veteran files a notice of disagreement with a decision, it takes the VA an average of 500 days to prepare the Statement of the Case.  Id. at 5-6.  It then notes the veteran then has to file a Form 9 and then the VA has to certify the appeal to the Board of Veterans’ Appeals.  The Federal Circuit notes it takes 2 ½ hours to complete the certification process, but veterans wait an average of 773 days for this certification to occur and an additional 321 days for the VA to actually transfer the certified appeal to the Board.  Id. at 6.

The Federal Circuit commented about these delays:

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 government, 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.

Id. at *6-7.

The Federal Circuit then turned to the question of how should the Veterans Court analyze whether the VA has unreasonably delayed an action.  Id. at *11.

The Court begins by acknowledging the Veteran Court’s current standard which basically asks is the delay so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.  Id. at *11-12

Then, the Court turns to another standard used by some courts to address delay by other agencies.  Id. at *12. See also Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984).

The Court then summarized this standard by saying:

In TRAC, the D.C. Circuit explained that the overarching inquiry in analyzing a claim of unreasonable delay is “whether the agency’s delay is so egregious as to warrant mandamus.” TRAC, 750 F.2d at 79. The D.C. Circuit pointed to six factors as relevant to this inquiry: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.  Id. at 80. In TRAC itself, the D.C. Circuit recognized that this standard is “hardly ironclad, and sometimes suffers from vagueness,” id., and the court has recently emphasized that each case should be analyzed based on its unique circumstances, see Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).

Id. at *12-13.

After laying out these two competing frameworks for analysis, the Court determines the first standard focuses solely on the VA’s interests at the expense of the veteran’s interests and instead determines the TRAC standards should be applied.  Id. at *14.

The Court then discusses the six TRAC factors in detail, which should serve as a primer for anyone seeking to draft a writ of mandamus for unreasonable delay. 

The Federal Circuit also explicitly states it sees “no reasonable explanation for the historic delays that have occurred during appeal certification, which takes an average of 773 days, and during transfer to the BVA, which takes another 321 days, on average. Such delays appear to be inexplicable.”  Id. at *16, n. 9.

Judge Moore took time to file a concurring opinion in which he expresses his frustration with the VA by stating:

In the cases before us today, we once again find ourselves faced with the fundamentally flawed program that is the veterans’ disability benefits system. Established with the intent of serving those who have served their country, the veterans’ disability benefits system is meant to support veterans by providing what are often life-sustaining funds. Instead, many veterans find themselves trapped for years in a bureaucratic labyrinth, plagued by delays and inaction.

Id. at *Concurrence 4.

He also says “Under the correct mandamus standard which we adopt today, veterans should have a much easier time forcing VA action through the mechanism of mandamus.”  Id. at *8.  He states

It is unfortunate, but the takeaway from all this is quite simple: hiring a lawyer and filing a mandamus petition forces the VA to act. Absent unusual circumstances, certification and docketing should be ministerial acts which take very little time to perform. Cases which languish at this non-substantive stage are good candidates for mandamus based on unreasonable delay and due process violations unless the government can proffer

a reason for the delay specific to the case.

Id. at *9-10.

Judge Moore concludes with this passionate closing:

The men and women in these cases protected this country and the freedoms we hold dear; they were disabled in the service of their country; the least we can do is properly resolve their disability claims so that they have the food and shelter necessary for survival. It takes on average six and a half years for a veteran to challenge a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men

and women to answer the call to serve and protect. We owe them more.

Id. at *10.

This decision is of incredible importance as it liberalizes a nearly impossible writ standard.  The result will likely be a much higher number of writs, but it might also force the VA to actually do there job.

Decision by Chief Judge Prost and joined by Judge Schall.  Concurrence by Judge Moore.

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