Heller: Advancing on the Docket Before the Board, Suicidal Ideation, and a Writ of Mandamus

Heller v. McDonough, Case Number 24-3504, decided November 21, 2024 concerns a request for a writ of mandamus to compel the Board to grant a motion to advance on the docket.

A case before the Board can take approximately 3 years for a decision.  However, a veteran can seek to be advanced on the docket if an appellant is seriously ill or is under severe financial hardship.  In this case, the veteran sought to have his case advanced on the docket arguing his suicidal ideation constituted serious illness.  The Board denied the request.

As a result, his attorney filed a writ of mandamus to the Court. Initially, the Court determined a denial of a motion to advance on the docket is a not an appealable issue.  However, a writ of mandamus operates as a vehicle to request the Court to compel the VA to do something.  Specifically,

“with the All Writs Act (AWA), Congress also empowered courts (including this Court) to issue writs in aid of their statutory jurisdiction. See 28 U.S.C. § 1651(a). In exercising this authority, we must be mindful that it is not a separate source of jurisdiction. Instead, we can use it to fill gaps in our appellate jurisdiction when, absent a writ, our prospective jurisdiction would be frustrated. See Love v. McDonough, 35 Vet.App. 336, 342 (2022) (per curiam order), aff'd, 100 F.4th 1388 (Fed. Cir. 2024); see also Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (noting that the "function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal"). What this means is that we can't use the AWA to independently decide legal disputes that don't facilitate a Board decision. See Love, 35 Vet.App. at 342. But we can use our AWA authority to remedy unreasonable delay.”

Id. at *6.

The Court then noted:

“Before we may issue a writ, we need to make sure three conditions are met: (1) a petitioner must show a lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used to replace the appeals process; (2) a petitioner must show a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuing the writ is warranted. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004). And in the delay Case: 24-3504 Page: 6 of 12 Filed: 11/21/2024 7 context, our consideration is also informed by the six "TRAC factors." Martin, 891 F.3d at 1344 (citing Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)).”

Id. at *6-7.

The Court then assessed the TRAC factors and determined:

“Troubled by suicidal ideation and financial difficulties, Mr. Heller asked the Board four times to advance his case on the docket; Congress said the Board could do so when a veteran has a serious illness or financial hardship. Each time, he was met with conclusory denials. With no likelihood of success at the Board, and an AOD appeal off the table, we find that Mr. Heller has shown he lacks adequate alternate means to have his case decided more quickly. See Cheney, 542 U.S. at 380-81. And because Mr. Heller has multiple records showing severe suicidal ideation, at times with a plan or an intent and an assessment of moderate to high risk of suicide, in addition to unemployment and a long period with no VA action on his appeal, we conclude that the TRAC factors clearly favor Mr. Heller and that he has shown a clear and indisputable right to a writ. See id. Finally, although mandamus is a drastic remedy, the Court is convinced that issuing a writ is warranted here. Thus, the Court will grant Mr. Heller's petition and order the Board to issue a decision within 30 days of the date of this order.”

 

Id. at *11.

This is an important case for two reasons.  First, it clarifies that a denial of a motion to advance on the docket is not an appealable issues.  Second, it offers a pathway to remedy such denial.  However, I suspect the Court will be loath to expand the impact of this case and issue more writs.  In short, this was an exceptional case driven by significant facts.  My only hope is that the Board is now more cognizant of the potential of suicidal ideation constituting serious illness.

Per Curiam decision by Judges Meredith, Toth, and Falvey.

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