Martin v. O'Rourke

United States Court of Appeals

for the Federal Circuit

______________________

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

---------------------------------------------------------------------------------

2 MARTIN v. O’ROURKE

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.

MARTIN v. O’ROURKE 3

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

______________________

2017-1747, 2017-1761, 2017-1768, 2017-1771, 2017-1772,

2017-1774, 2017-1780, 2017-1862, 2017-1967

______________________

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.

______________________

4 MARTIN v. O’ROURKE

Decided: June 7, 2018

______________________

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 Litiga-

tion 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, Washing-

ton, DC.

______________________

Before PROST, Chief Judge, SCHALL and MOORE,

Circuit Judges.

Opinion for the court filed by Chief Judge PROST.

Concurring opinion filed by Circuit Judge MOORE.

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

MARTIN v. O’ROURKE 5

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 con-

tracted 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 eligibil-

ity requirements. Cushman v. Shinseki, 576 F.3d 1290,

1298 (Fed. Cir. 2009).

A veteran begins the process of seeking benefits by fil-

ing a claim with a VA regional office. If the veteran

receives an unfavorable “rating decision” from the region-

al 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 docu-

ment required in the appeal process—the Statement of

the Case (“SOC”). On average, the VA takes 500 days to

1 After the Notice of Disagreement is filed, the vet-

eran may either proceed directly with his or her appeal to

the Board of Veterans’ Appeals (“BVA”), as outlined here,

or first request de novo review by a VA Decision Review

Officer at the regional office.

6 MARTIN v. O’ROURKE

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 certi-

fication process appears to take the VA about two and a

half hours to complete, on average. J.A. 508. Nonethe-

less, 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-

2 As the government explains in its briefing, after a

veteran files a Notice of Disagreement, the agency reex-

amines the claim and determines whether additional

review or development is warranted. If the disagreement

is not resolved by granting the benefit sought or through

withdrawal of the Notice of Disagreement, the VA must

then prepare an SOC. See 38 U.S.C. § 7105(d)(1). As

outlined by statute, the SOC includes:

(A) A summary of the evidence in the case perti-

nent to the issue or issues with which disagree-

ment has been expressed.

(B) A citation to pertinent laws and regulations

and a discussion of how such laws and regulations

affect the agency’s decision.

(C) The decision on each issue and a summary of

the reasons for such decision.

38 U.S.C. § 7105(d)(1); see 38 C.F.R. § 19.29.

MARTIN v. O’ROURKE 7

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 Vet-

erans 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, peti-

tioned 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

3 The appeals of four other individuals were consol-

idated under a separate appeal number. Rose v.

O’Rourke, No. 17-1762. The consolidated appeals were

argued together, and this court will issue a separate

opinion to address the cases of those four individuals.

4 We note that each mandamus petition in this case

asked for broad relief, including a declaration “hold[ing]

8 MARTIN v. O’ROURKE

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 provi-

sions.” 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 unconsti-

tutional and directing the Secretary to eliminate unrea-

sonable delay. Alternatively, Appellants ask us to

unconstitutional under the Due Process Clause of the

Fifth Amendment to the Constitution any statute, regula-

tion or practice that interferes with prompt and speedy

appeals,” see, e.g., J.A. 117, and holding “that the delays

regarding the approximately 146,000 pending appeals

violate the veterans’ due process rights,” see, e.g., J.A. 104

¶ 11. On appeal, however, Appellants now state that they

seek relief only with respect to each individual’s particu-

lar claim and not on behalf of all veterans with pending

claims before the VA. Appellants’ Reply Br. 30.

MARTIN v. O’ROURKE 9

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 re-

spective jurisdictions,” 28 U.S.C. § 1651(a).

With respect to mandamus petitions alleging unrea-

sonable delay, the U.S. Court of Appeals for the D.C.

Circuit has explained that “[b]ecause the statutory obliga-

tion 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

5 “Because the issuance of the writ is a matter vest-

ed in the discretion of the court to which the petition is

made, and because this Court is not presented with an

original writ of mandamus,” we need not analyze each

10 MARTIN v. O’ROURKE

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 ex-

tent 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 unlaw-

fully 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

traditional mandamus requirement. Cheney v. U.S. Dist.

Court for D.C., 542 U.S. 367, 391 (2004); see id. at 380–81

(listing the three traditional requirements). This, howev-

er, does not detract from the fact that all three require-

ments must be demonstrated for mandamus to issue. See

id. at 380–81. Instead, we remand for the Veterans Court

to consider the traditional mandamus requirements as

informed by the TRAC analysis.

6 The original version of § 7261(a)(2) allowed the

Veterans Court to “compel action of the Administrator

unlawfully withheld,” but did not include action “unrea-

sonably delayed.” Veterans’ Judicial Review Act, Pub. L.

MARTIN v. O’ROURKE 11

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

Court analyze whether the Secretary has “unreasonably

delayed” such action?

To answer this question, the Veterans Court employs

the standard outlined in Costanza v. West, 12 Vet. App.

133 (1999) (per curiam). Appellants contend, however,

that the Veterans Court should instead use the standard

outlined by the D.C. Circuit in TRAC, 750 F.2d at 79–80.

As explained below, we agree with Appellants that TRAC

provides a more appropriate framework for analyzing

claims of unreasonable delay.

1

Since 1999, the Veterans Court has applied the Cos-

tanza standard to evaluate mandamus petitions based on

alleged unreasonable delay. There is little to be said

about this standard’s origin. In a short, per curiam

opinion, the Veterans Court held that a mandamus peti-

tioner had not satisfied the second mandamus require-

ment (a clear and indisputable right to the writ) because

“[h]e had not demonstrated that the delay he complains of

is so extraordinary, given the demands and resources of

the Secretary, that the delay amounts to an arbitrary

refusal to act, and not the product of a burdened system.”

Costanza, 12 Vet. App. at 134. Later cases applied this

same standard, and the en banc Veterans Court in Rib-

No. 100-687, sec. 301(a), § 4061(a)(2), 102 Stat. 4105, 4115

(1988). Congress amended the statute one year later to

add “or unreasonably delayed.” Veterans’ Benefits

Amendments of 1989, Pub. L. No. 101-237, § 602(c), 103

Stat. 2062, 2095 (1989).

12 MARTIN v. O’ROURKE

audo v. Nicholson seemed to approve of the standard. See

20 Vet. App. 552, 555 (2007) (en banc) (“When delay is

alleged as the basis for a petition, this Court has held that

a clear and indisputable right to the writ does not exist

unless the petitioner demonstrates that the alleged delay

is so extraordinary, given the demands on and resources

of the Secretary, that it is equivalent to an arbitrary

refusal by the Secretary to act.”).

Although this court in a handful of non-precedential

decisions has acknowledged the Veterans Court’s use of

the Costanza standard, we have yet to adopt the standard

or endorse its use in a precedential opinion. See, e.g.,

Philippeaux v. Shulkin, 702 F. App’x 977, 980 (Fed. Cir.

2017); McChesky v. McDonald, 635 F. App’x 882, 886

(Fed. Cir. 2015); Davis v. McDonald, 593 F. App’x 992,

994 (Fed. Cir. 2014); Jackson v. Shinseki, 338 F. App’x

898, 901–02 (Fed. Cir. 2009).

2

Before the Veterans Court’s decision in Costanza,

some circuits had been using the standard developed by

the D.C. Circuit to analyze mandamus petitions based on

alleged unreasonable delay by an agency. See TRAC, 750

F.2d at 79–81; Indep. Min. Co. v. Babbitt, 105 F.3d 502,

507 (9th Cir. 1997); Towns of Wellesley, Concord & Nor-

wood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir. 1987).

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

MARTIN v. O’ROURKE 13

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 empha-

sized 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). 7

Other circuit courts have adopted the TRAC standard

to evaluate mandamus petitions based on alleged unrea-

sonable delay. In re A Cmty. Voice, 878 F.3d 779, 783–84

(9th Cir. 2017) (“When deciding whether to grant a man-

damus petition on the grounds of unreasonable delay, this

court applies the six factor balancing test set out by the

D.C. Circuit in TRAC.”); Towns of Wellesley, Concord &

Norwood, Mass., 829 F.2d at 277. And, even the Veterans

Court in its early days considered some of the TRAC

factors when evaluating a mandamus petition based on

7 More recently, courts employing TRAC have also

noted a need to first determine whether an agency has a

duty to act, given that “an agency cannot unreasonably

delay that which it is not required to do.” In re A Cmty.

Voice, 878 F.3d 779, 784 (9th Cir. 2017); cf. Heckler v.

Ringer, 466 U.S. 602, 616 (1984) (noting in the context of

a mandamus based on 28 U.S.C. § 1361 that an agency

must owe the petitioner a “clear nondiscretionary duty”).

In this case, however, no party disputes that the VA has a

duty to adjudicate and issue final decisions on these

pending claims for disability benefits.

14 MARTIN v. O’ROURKE

unreasonable delay. See Erspamer v. Derwinski, 1 Vet.

App. 3, 9–11 (1990).

3

With these two proposed frameworks in mind, we

turn to the question before us—namely, the proper stand-

ard for evaluating claims of unreasonable delay in the

VA’s adjudication of veterans’ benefits.

In Appellants’ view, the Costanza standard is insur-

mountable, as it focuses solely on the VA’s interests at the

expense of the veterans’ interests. Further, Appellants

contend that by requiring a “refusal” to act, the Costanza

standard effectively requires a petitioner to demonstrate

an affirmative or intentional refusal to act by the VA.

Meanwhile, Appellants assure us, the TRAC standard

provides a more balanced approach because it requires

consideration of the veterans’ interests and does not

require a showing of intent. We agree. As explained

below, the six TRAC factors serve as a useful starting

point for the Veterans Court to analyze mandamus peti-

tions based on unreasonable delay in the VA’s processing

of benefits claims and appeals.

The first TRAC factor—that “the time agencies take

to make decisions must be governed by a ‘rule of reason,’”

TRAC, 750 F.2d at 80—is considered to be the most

important factor in some circuits. In re A Cmty. Voice,

878 F.3d at 786 (“The most important is the first factor,

the ‘rule of reason,’ though it, like the others, is not itself

determinative.”). The second TRAC factor, of course,

relates to the first factor, as “a timetable or other indica-

tion of the speed with which [Congress] expects the agen-

cy to proceed” may “supply content” for the rule of reason.

TRAC, 750 F.2d at 80.

Although no congressional timetable for handling

these benefits claims currently exists, other considera-

tions can help form a “rule of reason” as to an appropriate

MARTIN v. O’ROURKE 15

timeline. The “rule of reason” analysis must, of course,

look at the particular agency action for which unreasona-

ble delay is alleged. It is reasonable that more complex

and substantive agency actions take longer than purely

ministerial ones. The “rule of reason” analysis may

consider the statutory instruction that cases on remand

receive expedited treatment. See 38 U.S.C. § 5109B (“The

Secretary shall take such actions as may be necessary to

provide for the expeditious treatment by the appropriate

regional office of the Veterans Benefits Administration of

any claim that is remanded to a regional office of the

Veterans Benefits Administration by the Board of Veter-

ans’ Appeals.”); id. § 7112 (“The Secretary shall take such

actions as may be necessary to provide for the expeditious

treatment by the Board of any claim that is remanded to

the Secretary by the Court of Appeals for Veterans

Claims.”). The “rule of reason” analysis may also consider

whether the delays complained of are based on complete

inaction by the VA, or whether the delays are due in part

to the VA’s statutory duty to assist a claimant in develop-

ing his or her case. 8 For example, it should also consider

whether delays are due to the agency’s failure to perform

certain ministerial tasks such as filling out the form

certifying the appeal to the BVA and docketing by the

BVA.

With these considerations in mind, we see no reason

to articulate a hard and fast rule with respect to the point

in time at which a delay becomes unreasonable. Because,

among other factors, reasonableness depends on the

particular agency action that is delayed, a two-year delay

8 We also note that the Veterans Appeals Improve-

ment and Modernization Act of 2017, Pub. L. No. 115-55,

131 Stat. 1105 (2017), modifies some aspects of the appeal

process, and therefore the unreasonable delay analysis

may vary based in part on these new changes.

16 MARTIN v. O’ROURKE

may be unreasonable in one case, and it may not be in

another. For example, the delay may be the result of the

VA’s duty to assist the veteran or a delay in obtaining

certain historical records. 9 Alternatively, the delay may

be the result of a failure to complete clerical or ministerial

tasks for the veteran. This “rule of reason” inquiry is best

left to the discretion of the Veterans Court. 10

The third and fifth TRAC factors address what seems

to be Appellants’ primary concern—namely, that Costan-

za leaves no room for the Veterans Court to consider the

interests of each veteran. Under the third factor, the

court considers that “delays that might be reasonable in

the sphere of economic regulation are less tolerable when

human health and welfare are at stake.” TRAC, 750 F.2d

at 80. Veterans’ disability claims always involve human

health and welfare.

Under the fifth factor, the court considers the nature

and extent of the interests prejudiced by the delay. As

other courts have noted, these two TRAC factors often

overlap. In re A Cmty. Voice, 878 F.3d at 787 (referring

back to the threat to human welfare and concluding that

“children exposed to lead poisoning due to the failure of

9 Again, however, we see 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.

10 With respect to Appellants’ reliance on statistics

regarding average delays, we agree with the Veterans

Court that reliance on such statistics is merely specula-

tive. See J.A. 8, 52, 26. Each mandamus petition should

be based on the facts of that particular case. As we have

explained before, such potential delays depend on a long

“chain of hypothesized actions.” Ebanks v. Shulkin, 877

F.3d 1037, 1039 (Fed. Cir. 2017).

MARTIN v. O’ROURKE 17

EPA to act are severely prejudiced by EPA’s delay, and

the fifth factor thus favors issuance of the writ”); In re

Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991) (noting

that the third TRAC factor “overlaps with the fifth”).

The fifth factor incorporates an analysis of the effect

of a delay on a particular veteran. For example, the

Veterans Court may find that it more strongly favors a

finding of unreasonable delay where it is evident that a

particular veteran is wholly dependent on the requested

disability benefits. As Appellants point out, many veter-

ans depend on these disability benefits for basic necessi-

ties, such as food, clothing, housing, and medical care. At

the same time, however, the Veterans Court may find this

factor does not weigh heavily toward a finding of unrea-

sonable delay where the veteran has a sustainable source

of income outside of the VA benefits system.

The fourth TRAC factor requires consideration of the

effect of expediting delayed action on agency activities of a

higher or competing priority. This factor addresses the

government’s primary praise of the Costanza test—that

the Veterans Court should be able to take account of the

practical realities of the burdened veterans’ benefits

system. See Appellee’s Br. 27. We agree with the gov-

ernment that this is a consideration to include in the

unreasonable delay analysis, and we think the TRAC

standard sufficiently encompasses this concern.

This fourth factor allows the Veterans Court to con-

sider the impact granting mandamus in a particular

appeal may have on other agency activities. In other

words, the VA may consider as one aspect of the overall

TRAC analysis the fact that the VA has fixed resources,

and that the agency is in a better position than the courts

to evaluate how to use those limited resources. See In re

Barr Labs., Inc., 930 F.2d at 76 (“In short, we have no

basis for reordering agency priorities. The agency is in a

unique—and authoritative—position to view its projects

18 MARTIN v. O’ROURKE

as a whole, estimate the prospects for each, and allocate

its resources in the optimal way. Such budget flexibility

as Congress has allowed the agency is not for us to hi-

jack.”); cf. Mass. v. EPA, 549 U.S. 497, 527 (2007) (“[A]n

agency has broad discretion to choose how best to marshal

its limited resources and personnel to carry out its dele-

gated responsibilities.”); Heckler v. Chaney, 470 U.S. 821,

831–32 (1985) (“The agency is far better equipped than

the courts to deal with the many variables involved in the

proper ordering of its priorities.”). The VA is necessarily

constrained by the resources Congress appropriates.

While forcing the VA to focus such limited resources on

addressing delays in certain appeals will inure to the

benefit of some veterans, such efforts may work a detri-

ment to other veterans who are also relying on the VA for

various types of assistance.

This inquiry may also include the impact on other ap-

plicants who have filed claims for benefits. For example,

granting a mandamus petition may simply shift a finite

number of resources from one pending claim to another.

Other circuits have expressed similar concerns in other

agency contexts. See, e.g., In re Barr Labs., Inc., 930 F.2d

at 75 (“Assuming constant resources for the generic drug

[approval] program, a judicial order putting [the manda-

mus petitioner] at the head of the queue simply moves all

others back one space and produces no net gain.”).

Finally, the sixth TRAC factor goes directly to a pri-

mary dispute regarding the Costanza standard. In Appel-

lants’ view, Costanza requires a mandamus petitioner to

show an intentional or affirmative refusal to act by the

VA. The government disagrees that Costanza requires

actual intent and instead characterizes the Costanza

standard as allowing mandamus where inaction

“amounts” to a refusal to act.

It is unclear whether the Veterans Court has required

a showing of intentional refusal to act when applying

MARTIN v. O’ROURKE 19

Costanza. Regardless, in our view, the sixth TRAC factor

gives this type of inquiry its due. Under this factor, the

Veterans Court need not find “any impropriety lurking

behind agency lassitude” to hold that agency action is

unreasonably delayed. TRAC, 750 F.2d at 80. A writ may

be appropriate under the TRAC analysis even where

there is no evidence of bad faith. See In re A Cmty. Voice,

878 F.3d at 787 (“Even assuming that EPA has numerous

competing priorities under the fourth factor and has acted

in good faith under the sixth factor, the clear balance of

the TRAC factors favors issuance of the writ.”). And

certainly, in the unlikely event that an individual could

show that the VA “singled [the individual] out for mis-

treatment,” such evidence would tend to favor issuance of

the writ. In re Barr Labs., Inc., 930 F.2d at 75.

Accordingly, today we adopt the TRAC standard as

the appropriate standard for the Veterans Court to use in

evaluating mandamus petitions based on alleged unrea-

sonable delay. And, “[t]o the extent [our] prior non-

precedential rulings diverge from our holding today, any

perceived conflict is superseded by today’s precedential

authority.” Monk v. Shulkin, 855 F.3d 1312, 1322 (Fed.

Cir. 2017).

B

Appellants also contend that, under the factors out-

lined in Mathews v. Eldridge, the delays they have expe-

rienced violate procedural due process. See 424 U.S. 319,

335 (1976).

Appellants’ mandamus petitions broadly ask the Vet-

erans Court to “declare that the VA’s conduct violates the

Due Process Clause of the Fifth Amendment” and to

“impose a remedy sufficient to address these violations of

[Appellants’] constitutional rights.” E.g., J.A. 102. The

petitions also ask the Veterans Court “to require [the VA]

to process promptly the individual claim embodied in this

petition, and to declare that the delays regarding the

20 MARTIN v. O’ROURKE

approximately 146,000 pending appeals violate the veter-

ans’ due process rights.” E.g., J.A. 104 ¶ 11. Finally, the

petitions conclude by asking for an order “hold[ing] un-

constitutional under the Due Process Clause of the Fifth

Amendment to the Constitution any statute, regulation or

practice that interferes with prompt and speedy appeals.”

E.g., J.A. 117. In sum, Appellants’ petitions ask the

Veterans Court to broadly declare that the entire process

is unconstitutional. Cf. Norton v. S. Utah Wilderness All.,

542 U.S. 55, 64 (2004) (noting that a claim under § 706(1)

of the APA is limited to “discrete agency action” and

precludes a “broad programmatic attack”).

Given our holding that the Veterans Court should

have conducted a more searching inquiry in evaluating

Appellants’ mandamus petitions, the Veterans Court will

have the opportunity to determine, under the TRAC

standard, whether the delay in each individual case was

unreasonable. As the D.C. Circuit has explained,

a claim that a plaintiff has been denied due pro-

cess because of delayed agency action is essential-

ly no different than an unreasonable delay claim;

indeed, if there is any difference at all, it is that

an unreasonable delay claim would likely be trig-

gered prior to a delay becoming so prolonged that

it qualifies as a constitutional deprivation of prop-

erty.

Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 660

(D.C. Cir. 2010). If the Veterans Court, employing the

TRAC analysis, finds a delay unreasonable (or not unrea-

sonable), it need not separately analyze the due process

claim based on that same delay. See id.

IV

Although this opinion will require remanding certain

cases for consideration under the TRAC standard, we note

some individual cases have become moot. In Ms. Aktepy’s

MARTIN v. O’ROURKE 21

case, the BVA recently issued its decision, making her

appeal moot. As to Ms. Scyphers, while it appears that

the original appellate proceedings regarding her Notice of

Disagreement filed in October 2014 concluded with a

grant of benefits in her favor, she has now filed a Notice of

Disagreement with respect to the effective date of that

award of benefits. ECF No. 82-1 at 4; see also ECF No.

69-1 at 3. This second Notice of Disagreement was filed

in November 2017; the VA issued the SOC in January

2018; and Ms. Scyphers filed her Form 9 in April 2018.

ECF No. 82-1 at 4. Because the delays on which her

original mandamus petition was based have essentially

been reset, we find her appeal moot. With respect to her

recently filed appeal, Ms. Scyphers remains free to, in the

future, file a mandamus petition based on delay, should

the need arise. Finally, and regretfully, the parties have

informed us that Mr. Myers passed away during the

course of this appeal, and the parties agree that his

appeal is now moot.

V

For the reasons above, we hold that the Veterans

Court should look to the TRAC factors as guidance when

evaluating mandamus petitions based on unreasonable

delay in the VA’s adjudication of benefits claims. We

vacate and remand the appeals of Mr. Martin, Mr. Jean,

Mr. Matthews, Mr. Meissgeier, Ms. Mote, and Mr. Rhodes

for reconsideration under the TRAC standard. 11 We

dismiss the appeals of Mr. Myers, Ms. Scyphers, and Ms.

Aktepy as moot.

11 Although two of the Veterans Court’s orders in

this consolidated set of appeals did not expressly rely on

the Costanza standard, it is unclear what standard, if

any, the Veterans Court employed in those cases. As

such, we find it appropriate to remand those cases for

consideration under the TRAC standard.

22 MARTIN v. O’ROURKE

VACATED-IN-PART, REMANDED-IN-PART, AND

DISMISSED-IN-PART

COSTS

Costs to Appellants.

United States Court of Appeals

for the Federal Circuit

______________________

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

---------------------------------------------------------------------------------

2 MARTIN v. O’ROURKE

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.

MARTIN v. O’ROURKE 3

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

______________________

2017-1747, 2017-1761, 2017-1768, 2017-1771, 2017-1772,

2017-1774, 2017-1780, 2017-1862, 2017-1967

______________________

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.

______________________

4 MARTIN v. O’ROURKE

MOORE, Circuit Judge, concurring.

I join the majority opinion in full, but write separately

because more needs to be said and done. 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.

The Department of Veterans’ Affairs’ own figures il-

lustrate the wide scope of the problem. In a 2017 report,

the Board of Veterans’ Appeals (“Board”) stated that after

the receipt of a notice of disagreement, it takes the Veter-

ans Benefits Administration (“VBA”) an average of 500

days to prepare a statement of the case. The veteran then

has 60 days to file a substantive appeal but on average

only takes 37 days. Once the appeal is received, it takes

the VBA an average of 773 days to certify the appeal.

This is a ministerial process that involves checking that

the file is correct and complete and completing a two-page

form which could take no more than a few minutes to fill

out. The VA’s own table of Work Rate Standards allo-

cates 2.6 hours to Appeal Certifications. J.A. 508. So

there is no confusion as to the utter simplicity and purely

clerical nature of this form, I have attached a copy to this

opinion. As can be seen, the form consists of a total of 13

items to be filled out, each requiring nothing more compli-

cated than the veteran’s name, the dates of various prior

actions before the VA, and whether or not a hearing was

requested. Unsurprisingly, the government has provided

no reason why such a simple task takes over two years to

complete, and I cannot conceive of any rational explana-

tion.

MARTIN v. O’ROURKE 5

Of course, certification of an appeal only moves a vet-

eran’s case out of the hands of the VBA and into the

hands of the Board where the case enters a new bureau-

cratic morass. Once the appeal has been certified (the

two-page form which takes the VA on average 773 days to

complete), a veteran must wait, on average, another 321

days for the appeal to be docketed by the Board. 1 Even

after being asked repeatedly at oral argument to explain

how docketing could possibly take so long, in post-

argument letters to the court, the government could not

explain why the average veteran spends more than ten

months waiting for his appeal to be “docketed” which the

government explains is distinct from the certification and

hearing stages. At our appellate court, cases take, at

most, 30 minutes to docket. But, the ministerial acts of

certifying the appeal (2 page sheet attached) and docket-

ing the appeal take the VA on average 1,094 days.

1 The VA has suggested that this delay is in part

attributable to data entry errors by VA employees. “After

cases are transferred to the Board, a team of employees

must manually review and correct most incoming cases

due to issues with labeling, mismatched dates, and miss-

ing files. Via an internal study, VA determined that up to

88 percent of cases transferred to the Board had such

errors.” U.S. Gov’t Accountability Off., GAO-17-234, VA

Disability Benefits: Additional Planning Would Enhance

Efforts to Improve the Timeliness of Appeals Decisions 20

(2017) (“GAO Report”). The government cannot justify

delays in case processing by pointing to its own clerical

errors such as data entry or labeling. If anything, such

evidence if present in an individual case weighs in favor of

mandamus.

6 MARTIN v. O’ROURKE

In total the appeals process takes over five and a

half years on average from the time a notice of disa-

greement is filed until the Board issues a decision, which

often sets the stage for more proceedings on remand. In

short, even when veterans win on appeal, they have lost

years of their lives living in constant uncertainty, possibly

in need of daily necessities such as food and shelter,

deprived of the very funds to which they are later found to

have been entitled.

The delays faced by veterans affect not just them, but

their families and friends as well. Even if a veteran is

fully entitled to benefits, should he die during the pen-

dency of the resolution (or appeal) of his disability bene-

fits claim, the veteran and his family lose the right to the

deserved benefits unless the veteran has a spouse, minor

children, or dependent parents. See Youngman v.

Shinseki, 699 F.3d 1301, 1304 (Fed. Cir. 2012). Adult

children and extended families, who have provided years

of financial or other support to the veteran because he

was not receiving his disability benefits, cannot recover

the benefits the veteran was entitled to during that time.

In the cases before us today, three of the veterans died

while their cases were pending before the VA or this

court.

While it is understandable that preparing the state-

ment of the case, and other substantive steps in the

process, may take significant amounts of time, it is un-

conscionable how long it takes the VA to perform the

many ministerial steps that take place after this. In most

of the cases before us today, when a mandamus petition

was filed, the VA actually took action. These proceedings

are supposed to be non-adversarial. Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 431–32 (2011). They

are intended to be pro-claimant. Id. A veteran should not

have to hire a lawyer to file a mandamus petition to get

the VA to act in his case.

MARTIN v. O’ROURKE 7

Under separation of powers, we do not have the au-

thority to require the Secretary to take specific actions to

fix these many problems across all veterans’ cases—an

action desperately needed. Instead, we are constrained to

the facts of the particular cases in front of us. However,

the proceedings in these cases illustrate the fundamental

problems with the system—problems that have been

acknowledged by the VA. Although the systemic resolu-

tion of these matters is not within the scope of this court’s

authority, there is little doubt as to the President’s ability

to take action.

The President signed into law the Veterans Appeals

Improvement and Modernization Act on August 23, 2017.

This new structure with different tracks for Board ap-

peals may streamline some cases after it takes effect in

February 2019. This has no impact on the 470,000 ap-

peals currently before the Board. 2 But more importantly,

the new law contains no deadlines for certification of an

appeal (the two-page document that currently takes the

VA an average of 773 days to process) or the Board dock-

eting (the process which currently takes the Board on

average 321 days to complete). 3 The Board has reported

2 The new statute provides a mechanism, RAMP,

for addressing some existing cases. RAMP, however,

requires the veteran to withdraw his current appeal, and

the Board will not start reviewing RAMP appeals until

October 2018. According to the government, RAMP has

gone virtually unused. U.S. Gov’t Accountability Off.,

GAO-18-352, VA Disability Benefits: Improved Planning

Practices Would Better Ensure Successful Appeals Re-

form 21-22 & n.42 (2018).

3 I note that the VA is implementing a new auto-

mated process, Caseflow, which it hopes will eliminate the

manual data entry errors it had previously found plagued

8 MARTIN v. O’ROURKE

that it has set a goal for itself of completing appeals (in

which no additional evidence is submitted and no hearing

is requested) in an average of 365 days. This is not law

and there are no consequences for the Board’s failure to

comply with its own goal. Moreover, this goal does not

appear to include the 1094 days which it takes for certify-

ing the appeal or docketing the appeal. So after a veteran

waits on average 1,094 days during which time nothing at

all is being done on his case, then the Board will try to

resolve his appeal in, on average, 365 days if he waives

his right to a hearing and agrees not to submit any addi-

tional evidence in support of his claim.

I hope the many minds which are focused on these

problems, this new legislation, Congressional oversight

and the VA reforms will improve what all acknowledge is

a deeply flawed veterans’ disability benefits system. In

the meantime, it is the job of the courts to review individ-

ual cases with claims of unreasonable delay. As in these

cases, the VA acts quicker when a mandamus petition has

been filed. Under the correct mandamus standard which

we adopt today, veterans should have a much easier time

forcing VA action through the mechanism of mandamus.

For example, it is hard to imagine how Mr. Martin could

be denied mandamus. He received his SSOC in December

2015 and filed his notice of appeal the same month. The

VA certified his appeal to the BVA in February 2016. The

next step would be for the BVA to docket his appeal, a

seemingly ministerial act. He filed his petition for man-

damus in September 2016 after the BVA failed to perform

this ministerial act for more than seven months. Accord-

ing to the government, to this date, more than 27 months

later, his appeal to the BVA has still not been docketed.

We note that in the other cases before us today where

cases transferred to the Board. GAO Report at 20. This

may speed up the docketing process.

MARTIN v. O’ROURKE 9

docketing occurred, it occurred at most within a couple of

months. See Joint Submission on Case Status (Myers:

Certified to the BVA-November 2016, docketed-November

2016; Aktepy: Certified to BVA-2/2017, docketed-6/2017;

Meissgeier: Certified to BVA-11/2017, docketed-4/2018).

The government offered no explanation for the failure to

take any action to docket the appeal for more than two

years in Mr. Martin’s case. Similarly, in the handful of

cases before us certification to the BVA was completed in

some instances within a week and in others took close to

three years. See Joint Submission of Case Status (com-

pare Matthews: Appeal Form filed-11/6/2017, Certified to

BVA-11/13/2017, with Aktepy: Appeal form filed-4/2014,

Certified to BVA-2/2017). Again, on the record before us,

the government offers no explanation for the delays in

certifying these cases. Once certified and docketed,

appeals must be decided on a first-in-first-considered

basis by the Board. See 38 U.S.C. § 7107(a)(4); 38 CFR

§ 20.900. 4 There is no similar first-in-first-out require-

ment for other portions of the VA process (such as rating

decisions, SSOCs, BVA certification or docketing). And,

the evidence before us suggests that the VA is not operat-

ing on a first-in-first-out basis for the ministerial acts of

certifying or docketing the appeal.

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 circum-

stances, certification and docketing should be ministerial

acts which take very little time to perform. Cases which

4 The statute does permit the Board to advance a

case on its docket pursuant to 38 U.S.C. § 7107 for good

cause which includes an appellant’s serious illness, ad-

vanced age, extreme financial hardship, or administrative

error which had caused prior delays. See VA Manual

M21-1, I.5.F.6.a.

10 MARTIN v. O’ROURKE

languish at this non-substantive stage are good candi-

dates for mandamus based on unreasonable delay and

due process violations unless the government can proffer

a reason for the delay specific to the case.

The men and women in these cases protected this

country and the freedoms we hold dear; they were disa-

bled 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.

MARTIN v. O’ROURKE 11

CERTIFICATION OF APPEAL – VA FORM 8

12 MARTIN v. O’ROURKE