Ebanks: Unreasonable delay; petition mooted

Ebanks v. Shulkin877 F.3d 1037 (Fed. Cir. Dec. 14, 2017)

HELD: Petition for writ of mandamus based on unreasonable delay in scheduling a Board hearing is mooted by the actual scheduling of the hearing – and does not fall within the exception to mootness if the claimant does not have a “reasonable expectation” that he will be subjected to the same action again. 

SUMMARY: Elon Ebanks appealed an RO denial of an increased rating and requested a Board hearing in December 2014. Nearly two years later, in September 2016, he petitioned the Veterans Court for a writ of mandamus to compel the Board to schedule the hearing. The Court denied the petition, and Mr. Ebanks appealed that decision to the Federal Circuit. 

While the appeal was pending, the Board held the requested hearing in October 2017 – nearly three years after his request. Because the hearing was held, the government claimed that the appeal was moot. Mr. Ebanks argued that the appeal was not moot because it falls under the exception for mootness for cases that are “capable of repetition yet evading review.” 

This exception applies when “(1) ‘the challenged action [is] in its duration too short to be fully litigated prior to the cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Mr. Ebanks asserted that even if he prevailed at the Board, the usual relief was to remand to the RO, which would result in further adjudication. He expected that he would likely ask for a new hearing and would again be subjected to unreasonable delay. The government disputed that argument. 

The Federal Circuit noted that any future hearing on remand would be subject to “expedited treatment under 38 U.S.C. § 7112.” The government also pointed out that Congress recently overhauled the appeals process and argued that any future appeal may be subject to this new regime. The Court found that Mr. Ebanks “has not established that future Board proceedings will be subject to the same delays as is presently the case” and thus “has not shown a sufficiently reasonable expectation that he will again be subjected to the same action.” 

The Court stated that even if the case were not moot, granting Mr. Ebanks’ petition “may result in no more than line-jumping without resolving the underlying problem of overall delay.” The Court added that the issue of delay “seems best addressed in the class-action context,” noting that it had “recently approved the use of collective actions in the Court of Appeals for Veterans Claims,” citing Monk v. Shulkin, 855 F.3d 1312, 1318-22 (Fed. Cir. 2017). 



Monk v. Shulkin, docket no. 2015-7106 (Fed. Cir. Apr. 26, 2017)

HELD: “[T]he Veterans Court has the authority to certify a class for a class action and to maintain similar aggregate resolution procedures.”

SUMMARY: In 2013, Mr. Monk was denied VA benefits based on his “other-than-honorable” discharge. He appealed that decision and, at the same time, applied for a discharge upgrade with the Board of Correction of Naval Records (BCNR). In 2015, the VA regional office informed Mr. Monk that it would not make a decision on his appeal until it received the BCNR’s decision. Mr. Monk petitioned the CAVC to order the Secretary to act on his appeal, as well as the appeal of “similarly situated veterans.” He asked the Court to certify a class under a class action to be comprised of veterans who had not received a decision within 12 months of filing a Notice of Disagreement and who had also demonstrated medical or financial hardship.

While the petition was pending at the Veterans Court, the BCNR upgraded Mr. Monk’s discharge to honorable. The CAVC denied the petition and rejected the request for class certification, stating that it “does not have the authority to entertain class actions.”

Mr. Monk appealed to the Federal Circuit – and VA subsequently awarded full disability benefits. Because of this, the Secretary argued that Mr. Monk’s appeal was moot. However, the Federal Circuit determined that the grant of benefits did not moot the legal question of whether the CAVC has the “authority to entertain class actions” since this “question exists independently of Mr. Monk’s disability award and it persists in the context of the appeal raised by Mr. Monk.” The Court stated that “where the relief sought is forward-looking, a claim is not moot if it is capable of repetition and yet evades review.” The Court noted that “veterans face, on average, about four years of delay between filing an NOD and receiving a final Board decision,” and that there are thousands of veterans still awaiting decisions on their appeals.

The Court held that the CAVC has the authority to certify and adjudicate class action cases “under the All Writs Act, other statutory authority, and [its] inherent powers.” The Federal Circuit stated that the All Writs Act “unquestionably applies to the Veterans Court” and noted that it “has provided authority to aggregate cases in various contexts.”

With respect the “other statutory authority,” the Federal Circuit noted that the Veterans Judicial Review Act (VJRA, the statute that created the Veterans Court) vested the CAVC “with authority to review Board decisions adverse to veterans,” and noted that there “is no indication that Congress intended such review authority to not include class actions.” The Court further noted that 38 U.S.C. § 7264(a) “authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction” – and that “[o]ther tribunals have relied on statutes with similar language . . . to aggregate claims and create class action procedures.” Based on this statute, the Federal Circuit held that “the Veterans Court may prescribe procedures for class actions or other methods of aggregation.”

The Federal Circuit recognized the CAVC’s reliance on its own earlier decision that held that it lacked class action authority. That decision, Harrison v. Derwinski, 1 Vet.App. 438 (1991) was based on the Court’s understanding that (1) its jurisdiction was limited to review of final Board decisions, (2) it was statutorily precluded from making factual findings in the first instance, and (3) each person adversely affected by a Board decision was required by statute to file a Notice of Appeal with the CAVC. This decision further recognized that the CAVC has “previously declined to permit class actions because to do so would be unmanageable and unnecessary.”

The Federal Circuit disagreed that the CAVC’s authority was so limited in light of its statutory authority to “compel action of the Secretary unlawfully withheld or unreasonably delayed” (quoting 38 U.S.C. § 7261(a)(2)). The Federal Circuit noted that “there was legislative history that the focus should be on individual claimants, but still found “no persuasive indication that Congress intended to remove class action protection for veterans when it enacted the VJRA.” The Court added that “[c]lass actions can help the Veterans Court exercise that authority by promoting efficiency, consistency, and improving access to legal and expert assistance by parties with limited resources.”

The Federal Circuit bolstered its decision by pointing out the ways in which class actions would help the CAVC achieve its goal of “reviewing VA’s delay in adjudicating appeals,” as well as increase “its prospects for precedential opinions” and “serve as lawgiver and error corrector simultaneously, while also reducing the delays associated with individual appeals.” In advancing the use of “class actions to promote efficiency, consistency, and fairness in its decisions,” the Federal Circuit stated that the CAVC was similar to the “EEOC or bankruptcy courts that have adopted class action mechanisms to promote similar concerns.” The Court thus held that the CAVC “has authority to certify a class for class action or similar aggregate resolution procedure,” but declined to address whether certification was appropriate in this case or the nature of procedures the CAVC may adopt for class actions.