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). 


Browder: Fiduciary, allegations of misuse of funds

Browder v. Shulkin29 Vet.App. 170 (Dec. 12, 2017)

HELD: Petition to compel Secretary to act is dismissed as moot when Secretary finally acts on veteran's allegations of fiduciary's misuse of his benefits. 

SUMMARY: More than a decade prior to this petition, veteran Joe Browder alleged that his VA-appointed fiduciary had embezzled a portion of his benefits. VA refused to investigate and Mr. Browder attempted to appeal to the Board. When VA took no action on his appeal, Mr. Browder petitioned the Court for a writ of mandamus to compel the Secretary to act. 

The Court formed a panel to consider “whether a decision by the Secretary not to formally investigate a misuse allegation may be appealed to the Board and eventually to the Court.” The Court noted that Congress created a statute defining misuse by a fiduciary, 38 U.S.C. § 6106. Yet, the Secretary never issued regulations addressing misuse or explaining how VA is to respond to veterans’ complaints. Instead, VA has created “policy” to respond to misuse allegations. 

After the panel was formed, the Secretary informed the Court that the fiduciary hub involved in Mr. Browder’s case “had reversed course,” conducted a formal investigation, and issued a report, along with notice of his right to appeal that decision. Because Mr. Browder had now received a decision that he could appeal to the Board, the Court dismissed the petition as moot. 

Understanding Mr. Browder’s frustration with this process and acknowledging the “injustice” of his case, as well as VA’s fiduciary policies in general, the Court stated: 

The Secretary, for more than a decade, refused to formally investigate the petitioner’s misuse allegations or allow him to bring them before the Board and ignored many of his arguments. Then, within months of learning that a precedential decision might upend his fiduciary investigation policies, the Secretary mooted the petition by sending out a formal misuse report that strained, filler and all, to reach two pages. It is hard not to see how the Secretary’s actions could come across as cynical, and they are especially concerning given the “growing consensus outside VA that the fiduciary system is broken.” 



Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)

HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners. 

In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.

The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.

In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.

Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.

Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing