Martin: Petition for writ of mandamus; TRAC standard

Martin v. O’Rourke, 891 F.3d 1338 (June 7, 2018) 

HELD: The multi-factorial TRAC standard is the appropriate standard for the CAVC to use in evaluating petitions for writs of mandamus based on unreasonable delay. 

SUMMARY: In evaluating mandamus petitions based on unreasonable delay, the Court has applied the standard from Costanza v. West, 12 Vet.App,. 133 (1999) (per curiam), that requires a petitioner to demonstrate 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.”

The Federal Circuit held that this standard was “insurmountable,” and that the more appropriate standard was the one set forth in Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984). The Federal Circuit noted that other courts have used the TRAC standard when evaluating petitions based on an administrative agency’s unreasonable delay – and found that the TRAC framework was more appropriate than the CAVC’s current Constanza standard. 

The TRAC framework requires courts to consider six factors: 

(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 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.

The Federal Circuit remanded for the CAVC to use the TRAC framework as guidance in evaluating petitions based on delay. 

FULL DECISION

Ebanks: Unreasonable delay; petition mooted

Ebanks v. Shulkin, 877 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). 

FULL DECISION