Love et al: Reductions and Writs of Mandamus

Love v. McDonough, Opinion Number 2022-2285, was decided May 3, 2024 by the Federal Circuit and actually represented four consolidated cases that had requested for a writ of mandamus related to  halting the impact of a rating reduction.

The issue at hand was whether the veteran’s had a right to a writ of mandamus where a veteran whose rating was reduced sought to have the original rating continued pending the final resolution of the validity of the reduction. 

The veterans argued the Veterans Court has jurisdiction to “compel action of the Secretary unlawfully withheld,” 38 U.S.C. § 7261(a)(2), and contended that when “an agency acts incorrectly, the All Writs Act provides authority for the appellate court to issue relief.” The veterans sought a writ of mandamus at the Veterans Court to prohibit the reduction of benefits temporarily until a final decision is rendered.  The Veterans Court denied the writ and it was appealed to the Federal Circuit.

The Court began by noting that in three of the cases, the veteran made no claim to the VA or Board for entitlement to interim payments.  In another case, a request was made but the matter was not pursued further when the agency failed to act.  The veterans argued further action was not possible because the Board in the one case  refused to rule on the request for interim relief until it decided the merits of the reduction.

The Federal Circuit determined:

“The appellants fail to recognize that the Board is not the last word. The very purpose of the statutory provisions providing for appeal to the Veterans Court, 38 U.S.C. § 7252(a), and to this court, 38 U.S.C. § 7292(c), is to correct error by the VA. The veterans in the Love case could request relief from the VA. In both the Love and Lindgren cases, the failure of the VA to act or refuse to rule would support the petitions for mandamus to compel the agency to decide the case so that an appeal could be pursued. Indeed, we have routinely approved this approach in the veterans context, and the Veterans Court in these cases advised the appellants of the availability of this very process.”

Id. at *9.  It then determined no request was made to compel a decision by the Board, but noted: “If a decision had been obtained from the Board denying the requested relief, a remedy by appeal would have been available to the veterans.”  Id. at *10.

The Court then helpfully explained:

“Any argument that the lack of a final judgment on the underlying disability claim would preclude an appeal from the denial of a request for interim relief would necessarily fail. Finality is assessed on a claim-by-claim basis, and the question of entitlement to interim payments as a discrete benefit is a separate legal claim from the merits of an underlying rating reduction.… A decision from the Board denying interim relief would be a final decision within the Veterans Court’s jurisdiction….  A decision by the Veterans Court denying relief would also be appealable. 38 U.S.C. § 7292(a).”

Id. at *10.

The Court then noted:

“Even if the request for interim relief were not treated as a separate claim, review in this court would be available. Although we have “generally declined to review non-final orders of the Veterans Court,” there are exceptions in limited and rare circumstances…. An appeal is available if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.”

Id. at *10-11.  

The Court then explicitly stated that the issue of interim payments while the merits of the underlying reduction decision was still pending is an exception and could have been appealed explaining: “The proper implementation date is a legal question separate from the proceedings, the resolution would adversely affect the veterans, and, as the veterans point out, “any relief issued once the decisions are final [would] be meaningless.”  Id. at *11.  The Court also said that Rule 8(a) of the CAVC Rules of Practice and Procedure might also come into play, Rule 8 addresses suspension of Secretarial Action.

This is a fascinating opinion.  While the writ was ultimately denied, the Federal Circuit created a clear pathway toward a grant and possible application of Rule 8 to halt the impact of a reduction.  Any veteran or attorney handling a reduction, should be aware of this case.

Opinion by Judge Dyk and joined in by Judges Schall and Hughes.

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