Veteranclaims’s Blog

September 28, 2020

Mote v. Wilkie, No. 2019-2367(Decided: September 28, 2020); Martin v. O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018), where we replaced the Veterans Court’s test for evaluating an unreasonable-delay mandamus petition with the standard articulated in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”); Veterans Court to conduct a TRAC analysis in the first instance; TRAC standard is “the appropriate standard for the Veterans Court to use in evaluating mandamus petitions based on alleged unreasonable delay.” Martin, 891 F.3d at 1348;

United States Court of Appeals for the Federal Circuit


EUGENIA MOTE, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee


2019-2367


Appeal from the United States Court of Appeals for Veterans Claims in No. 16-2506, Senior Judge Mary J. Schoelen.
__________ Decided: September 28, 2020 __________
CHARLES MCCLOUD, Williams & Connolly LLP, Wash-ington, DC, argued for claimant-appellant. Also repre-sented by STEPHEN RABER, LIAM JAMES MONTGOMERY; JOHN AUBREY CHANDLER, ELIZABETH VRANICAR TANIS, At-lanta, GA. ASHLEY AKERS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing-ton, DC, argued for respondent-appellee. Also represented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT Case: 19-2367 Document: 51 Page: 1 Filed: 09/28/2020
2 MOTE v. WILKIE
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.


Before PROST, Chief Judge, MOORE and STOLL, Circuit Judges.
PROST, Chief Judge.
Mrs. Eugenia Mote appeals from the Court of Appeals for Veterans Claims’ (“Veterans Court”) dismissal of her mandamus petition alleging unreasonable delay by the De-partment of Veterans Affairs (“VA”) in resolving her benefits claim.
Mrs. Mote has been here before, under similar circumstances. She was one of nine consolidated appellants in Martin v. O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018), where we replaced the Veterans Court’s test for evaluating an unreasonable-delay mandamus petition with the standard articulated in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). We remanded Mrs. Mote’s individual case to the Veterans Court to conduct a TRAC analysis in the first instance. But on remand, the Veterans Court failed to conduct such an analysis. We therefore remand, again, for it to do so.
BACKGROUND
I
Mrs. Mote is the widow of veteran Wayne Gary Mote, who honorably served in the United States Air Force from February 1961 to May 1965. Mr. Mote claimed to have par-ticipated in two covert missions to Da Nang, Vietnam, where Agent Orange had been deployed. After leaving the service, Mr. Mote developed coronary artery disease and lung cancer. Case: 19-2367 Document: 51 Page: 2 Filed: 09/28/2020
MOTE v. WILKIE 3
In November 2010, Mr. Mote filed a disability claim for ischemic heart disease based on exposure to Agent Orange during his alleged missions to Vietnam. The VA denied his claim in November 2012. In January 2013, Mr. Mote filed his Notice of Disagreement with that denial, but he passed away just a few months later. Mrs. Mote thereafter substi-tuted for his claim and also filed a dependency-and-indem-nity compensation (“DIC”) claim. The VA denied Mrs. Mote’s DIC claim in January 2015, and Mrs. Mote filed her Notice of Disagreement with that denial in November 2015.
The VA issued its Statement of the Case in May 2016. The following month, Mrs. Mote filed her substantive ap-peal with the Board of Veterans’ Appeals (“Board”) and re-quested an in-person Board hearing at her local VA regional office (a so-called Travel Board hearing).
In September 2016, Mrs. Mote petitioned the Veterans Court for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, alleging unreasonable delay in her case. The Veterans Court denied the petition, applying the standard outlined in that court’s decision Costanza v. West, 12 Vet. App. 133 (1999), which asked whether the com-plained-of delay was “so extraordinary, given the demands [on] and resources of the Secretary, that the delay amounts to an arbitrary refusal to act.” See J.A. 198 (citing Cos-tanza, 12 Vet. App. at 134). The Veterans Court found that Mrs. Mote’s complained-of delay failed to meet that stand-ard. It also acknowledged the government’s position that, because Mrs. Mote requested a Travel Board hearing and maintained that request, the Board could not issue a deci-sion until after the hearing. J.A. 197. According to the government, due to limited Board personnel and resources, it “could not predict how long” Mrs. Mote might have to wait for her hearing. See J.A. 197.
Mrs. Mote appealed to this court. We consolidated her appeal with that of eight other individual appellants and
Case: 19-2367 Document: 51 Page: 3 Filed: 09/28/2020
4 MOTE v. WILKIE
held, in Martin, that the Veterans Court should use the TRAC standard to evaluate unreasonable-delay manda-mus petitions (as opposed to the Costanza standard it pre-viously used). Martin, 891 F.3d at 1344–48. We remanded Mrs. Mote’s case to the Veterans Court “for reconsideration under the TRAC standard.” Id. at 1349.
II
In November 2018, following this court’s July 2018 mandate, Mrs. Mote filed with the Veterans Court an amended mandamus petition—largely identical to the pre-vious, but further requesting a “reasoned decision” from the Board (to be issued within 45 days of the court’s order) and periodic progress reports until the requested decision’s issuance. J.A. 68; see J.A. 50–70.
The government responded to Mrs. Mote’s petition on March 8, 2019. Incidentally, that very same day the Board finally scheduled her requested Travel Board hearing, set-ting it for May 13, 2019—just over two months out.
Before the scheduled hearing occurred, however, the Veterans Court dismissed Mrs. Mote’s mandamus petition in a single-judge order. Mote v. Wilkie, No. 16-2506, 2019 WL 1599447 (Vet. App. Apr. 16, 2019). The court began by recounting the case’s procedural history, including this court’s remand for reconsideration under the TRAC stand-ard. But after setting forth that standard, the court did not apply or otherwise engage with it. Instead, the court dwelled on the recently scheduled (yet still-pending) hear-ing, reasoning: “Because [Mrs. Mote] has not yet partici-pated in her scheduled Board hearing, her request for a writ of mandamus for the Board to issue a decision concern-ing her claims is premature.” Id. at *2.1 The court did not
1 The Veterans Court also declined to entertain Mrs. Mote’s requests to (1) generally hold unconstitutional or in-validate “any statute, regulation, or practice” contributing Case: 19-2367 Document: 51 Page: 4 Filed: 09/28/2020
MOTE v. WILKIE 5
separately address the possibility of granting Mrs. Mote’s request for progress reports pending the requested Board decision. Mrs. Mote moved for a panel decision on May 2, 2019.
Meanwhile, the Travel Board hearing occurred as scheduled on May 13, 2019, during which Mrs. Mote pre-sented argument and evidence concerning her late hus-band’s alleged covert missions to Vietnam. See J.A. 209–36.
On July 15, 2019, the Veterans Court ruled on Mrs. Mote’s motion for a panel decision. J.A. 2. Although the single-judge order had dismissed Mrs. Mote’s petition mainly because her hearing had not yet occurred, the panel—two months after the hearing—retained that order as the decision of the Veterans Court. J.A. 2. The Veterans Court entered its final judgment on August 6, 2019, and Mrs. Mote again appealed to this court.
Eight days after the Veterans Court’s final judgment, the Board took up Mrs. Mote’s case but remanded to a VA regional office for further factual development. See J.A. 240–44.
DISCUSSION
This court has limited jurisdiction to review Veterans Court decisions. We “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regu-lation as applied to the facts of a particular case.”
to allegedly unreasonable delay; and (2) provide systemic (as opposed to individualized) relief from such delay. Mote, 2019 WL 1599447, at *3; see Martin, 891 F.3d at 1348 (characterizing similar requests as “ask[ing] the Veterans Court to broadly declare that the entire process is uncon-stitutional”). Mrs. Mote has not challenged these rulings on appeal. Case: 19-2367 Document: 51 Page: 5 Filed: 09/28/2020
6 MOTE v. WILKIE
38 U.S.C. § 7292(d)(2). This court does, however, have ju-risdiction to “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” Id. § 7292(d)(1).
Mrs. Mote argues that by failing to apply TRAC, the Veterans Court applied an improper legal standard in de-ciding her mandamus petition. The proper legal standard for the Veterans Court to use in deciding mandamus peti-tions is an issue within this court’s jurisdiction. See Mar-tin, 891 F.3d at 1343 n.5, 1344–48 (addressing, and articulating, the proper legal standard for the Veterans Court to use in deciding unreasonable-delay mandamus pe-titions); see also Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013) (“This court has jurisdiction to review the [Veterans Court’s] decision whether to grant a mandamus petition that raises a non-frivolous legal question . . . .”); Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 2002) (“There is no indication . . . that in . . . limiting our jurisdic-tion, Congress intended to insulate from judicial review [the Veterans Court’s] ruling on mandamus petitions.”).
While the government does not dispute our statutory jurisdiction to address the proper legal standard, it argues that the Board’s post-appeal remand mooted this case, thus depriving this court of constitutional jurisdiction. We ad-dress this argument first. After disposing of it, we address the merits of Mrs. Mote’s challenge to the legal standard the Veterans Court applied in deciding her mandamus pe-tition, as well as her constitutional due process challenge.
I
Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” U.S. CONST. art. III, § 2; Rucho v. Common Cause, 139 S. Ct. 2484, 2493 (2019). A case that becomes moot is no longer a “Case” or “Contro-versy” for Article III purposes. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). And a case becomes moot when a claimant receives all her requested relief. See, e.g., Monk
Case: 19-2367 Document: 51 Page: 6 Filed: 09/28/2020
MOTE v. WILKIE 7
v. Shulkin, 855 F.3d 1312, 1316 (Fed. Cir. 2017); accord Cierco v. Mnuchin, 857 F.3d 407, 410 (D.C. Cir. 2017) (“Ap-pellants received full relief on their first claim. Therefore, we agree that Appellants’ first claim for relief is moot.”); Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144 (9th Cir. 2016) (“[A] lawsuit—or an individual claim—becomes moot when a plaintiff actually receives all of the relief he or she could receive on the claim through further litigation.”).
The government argues that the Board’s remand for further factual development satisfied Mrs. Mote’s request for a reasoned “decision,” thus mooting this case. We disa-gree.
The Board’s jurisdictional statute references Board “decisions,” 38 U.S.C. § 7104, and the Veterans Court’s ju-risdictional statute grants it authority to review Board “de-cisions,” id. § 7252(a). Our precedent holds that a Board “decision” in this context does not mean a mere remand. Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005) (“Our case law and [§] 7104(d)(2) define a Board de-cision as including an order granting appropriate relief or denying relief. The Board’s remand in this case [for addi-tional medical examinations] contains no order granting or denying relief.”);2 id. at 1365 (agreeing with the govern-ment “that the Board’s remand in this case was not a deci-sion within the meaning of [§] 7252(a)”).
The government acknowledges as much. See Appellee’s Br. 15 n.5. Still, it argues that Mrs. Mote’s failure to “ca-veat” her request means that the Board’s remand—a deci-sion, of sorts—gave her what she requested. Given our precedent, however, we do not believe Mrs. Mote had to
2 Section 7104(d)(2) has since been redesignated as § 7104(d)(3). Veterans Appeals Improvement and Modern-ization Act of 2017, Pub. L. No. 115-55, sec. 2(w)(2)(B), 131 Stat. 1105, 1114. Case: 19-2367 Document: 51 Page: 7 Filed: 09/28/2020
8 MOTE v. WILKIE
caveat her request for a “decision” to convey that a remand alone would not suffice; rather, the far more reasonable in-terpretation of her request for a Board “decision” was a grant or denial of benefits. See Tyrues v. Shinseki, 732 F.3d 1351, 1355 (Fed. Cir. 2013) (“A decision of the Board is an order that either grants or denies benefits sought by the veteran.”); Kirkpatrick, 417 F.3d at 1364; Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board . . . is the decision with respect to the benefit sought by the veteran: those benefits are either granted . . . or they are denied.”).
Further, even if by requesting a “decision” Mrs. Mote left any doubt as to what she sought, her particular circum-stances would lay that doubt to rest. Caveat or not, after eight years,3 a mandamus petition, and an appeal to this court (resulting in a remand to the Veterans Court), fol-lowed by another mandamus petition, it seems implausible that a remand was all her petition contemplated when re-questing a “decision” from the Board.
The petition also sought progress reports pending the requested decision. J.A. 68. Because we conclude that Mrs. Mote has not received her requested decision, we con-clude that her request for progress reports is not moot.4
3 From the filing of Mr. Mote’s disability claim (No-vember 2010) to the filing of the petition at issue here (No-vember 2018). Now approaching ten years.
4 The government recognizes that Mrs. Mote’s peti-tion further sought an order finding that Mrs. Mote’s rights had been violated. Appellee’s Br. 13 (citing J.A. 68). Be-cause we conclude that this case is not moot (given two re-maining live requests—a Board decision and progress reports), we need not reach the government’s argument as to whether Mrs. Mote’s request for such an order would, by itself, be sufficient “to carry this litigation forward,” see id. Case: 19-2367 Document: 51 Page: 8 Filed: 09/28/2020
MOTE v. WILKIE 9
We do not mean to suggest, however, that the Board’s remand was improper. Indeed, although Mrs. Mote main-tains that it was unnecessary, Oral Arg. at 6:24–40, she does not dispute that her requested relief allowed for the possibility of a remand en route to an ultimate Board deci-sion, id. at 3:23–46.5 Her contention is that the Veterans Court could, and should, have done more to ensure the case moved along—for example, by imposing deadlines both to complete any remand proceedings and to issue a decision thereafter, or at least by requiring progress reports until the Board issued a decision. Id. at 3:46–4:48; see Reply Br. 7.
In light of the above, it is clear that the Board’s remand did not provide all of the relief Mrs. Mote requested, that a case or controversy remains, and that we may adjudicate it.
II
We turn now to the merits. Mrs. Mote argues that the Veterans Court legally erred by failing to conduct the TRAC analysis that Martin requires. The government has two responses—first, that the Veterans Court did not need to conduct that analysis here; and second, that the court actually did so. We address these in turn. We lastly ad-dress Mrs. Mote’s constitutional due process challenge.
A
The Supreme Court in Cheney articulated three condi-tions that must be satisfied before a court may grant the extraordinary writ of mandamus: (1) the party seeking the writ must have “no other adequate means” to obtain the desired relief; (2) the party’s right to the writ must be “clear and indisputable”; and (3) even if these first two conditions
5 No. 19-2367, http://www.cafc.uscourts.gov/oral-ar-gument-recordings (“Oral Arg.”). Case: 19-2367 Document: 51 Page: 9 Filed: 09/28/2020
10 MOTE v. WILKIE
are met, “the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the cir-cumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (cleaned up).
Further, the D.C. Circuit in TRAC set forth a six-factor standard useful for evaluating mandamus petitions alleg-ing unreasonable agency delay: (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 indi-cation of the speed with which it expects the agency to pro-ceed 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 de-layed action on agency activities of a higher or competing priority; (5) the court should also take into account the na-ture 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 un-reasonably delayed. 750 F.2d at 80.
In Martin, this court adopted the TRAC standard as the appropriate standard for the Veterans Court to use in evaluating mandamus petitions alleging unreasonable de-lay by the VA. Martin, 891 F.3d at 1348. While we acknowledged that “all three [Cheney] requirements must be demonstrated for mandamus to issue,” id. at 1343 n.5, we remanded this case specifically “for reconsideration un-der the TRAC standard,” id. at 1349.
Yet, now back before this court, the government con-tends that in dismissing Mrs. Mote’s petition, the Veterans Court did not have to consider the TRAC standard after all. The government seizes on Cheney’s third factor—whether a writ is “appropriate under the circumstances”—and ar-gues that the Veterans Court found this factor not met, thus obviating the need to engage with the TRAC factors Case: 19-2367 Document: 51 Page: 10 Filed: 09/28/2020
MOTE v. WILKIE 11
before dismissing the mandamus petition. See Appellee’s Br. 21, 25–27. This is not the correct approach. Indeed, the Veterans Court did not even purport to adopt this ap-proach—after appearing once, in the opinion’s legal-stand-ard section, the Cheney factors were not to be seen again. See Mote, 2019 WL 1599447, at *2–3. But setting that aside, we remain unconvinced as to the approach’s general soundness.
Cheney’s third factor has been described as a “rela-tively broad and amorphous totality of the circumstances consideration.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 762 (D.C. Cir. 2014) (Kavanaugh, J.). Cheney itself describes the factor as one appropriately taken up after consideration of the more-specific “no other adequate means” and “clear and indisputable right” factors: “Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” 542 U.S. at 381 (emphasis added). This phrasing suggests that the third factor is intended more as a final check on granting the writ than as an amorphously discretionary means of denying it, without consulting the other two factors. This is particularly so given that, as an “extraordinary” remedy, it will usually not be hard to find some reason counseling against a writ. We therefore seriously doubt that the Court intended the analysis to be conducted in the way the gov-ernment suggests.
We reach a similar conclusion regarding the TRAC fac-tors. These specific factors have emerged over time as hav-ing particular relevance to petitions alleging unreasonable agency delay. And, as we held in Martin, the Veterans Court should consider them in this context. 891 F.3d at 1344 (“[W]e agree . . . that TRAC provides a more appropri-ate framework for analyzing claims of unreasonable de-lay.”); id. at 1345 (“[T]he six TRAC factors serve as a useful starting point for the Veterans Court to analyze mandamus petitions based on unreasonable delay in the VA’s Case: 19-2367 Document: 51 Page: 11 Filed: 09/28/2020
12 MOTE v. WILKIE
processing of benefits claims and appeals.”); id. at 1349 (“[W]e hold that the Veterans Court should look to the TRAC factors as guidance when evaluating mandamus pe-titions based on unreasonable delay in the VA’s adjudica-tion of benefits claims.”). While the government maintains that TRAC doesn’t “supplant the entire mandamus analy-sis” and that satisfying the third Cheney factor remains necessary before granting mandamus, Appellee’s Br. 25–26, we readily accept as much (at least for argument’s sake)—yet still conclude that the TRAC factors should be considered before dismissing or otherwise denying manda-mus petitions alleging unreasonable agency delay.6 Here, they weren’t considered at all.
Even apart from the analytical error of failing to apply TRAC, the government’s argument based on Cheney’s third
6 Courts that have discussed the interplay among the TRAC factors and the more-traditional mandamus re-quirements (including those articulated in Cheney) have been inconclusive. See Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189–90 (D.C. Cir. 2016) (explaining that, “[b]ecause [the TRAC] factors function not as a hard and fast set of required elements, but rather as useful guidance as to whether a delay is so egregious as to warrant manda-mus, their roles may differ depending on the circum-stances” (cleaned up)); cf. In re Cal. Power Exch. Corp., 245 F.3d 1110, 1125 (9th Cir. 2001) (observing that the TRAC factors were “somewhat different” from the more-tradi-tional mandamus considerations at issue, but concluding that the delay under TRAC was not so unreasonable as to leave petitioner without an adequate alternative remedy—i.e., simply waiting for a final order). We need not resolve specifically where and how TRAC fits in among the Cheney factors to reaffirm, as we do here, that the Veterans Court should consider the TRAC factors when evaluating an un-reasonable-delay mandamus petition. Case: 19-2367 Document: 51 Page: 12 Filed: 09/28/2020
MOTE v. WILKIE 13
factor fails on its own merits. According to the government, the Veterans Court properly concluded that the pendency of Mrs. Mote’s hearing made compelling “an immediate [B]oard decision” inappropriate under the circumstances.
7 Appellee’s Br. 21, 26–27; see id. at 21–27. There are at least two problems with this argument.
First, this argument fails to acknowledge the other re-lief Mrs. Mote’s petition sought, such as progress reports pending the Board’s decision. J.A. 68. Neither the Veter-ans Court nor the government has explained why the mere pendency of Mrs. Mote’s hearing made compelling progress reports inappropriate—nor is it apparent to this court.
Second, the government fails to appreciate the other options available to the Veterans Court to provide Mrs. Mote relief. Indeed, as the issuance of a writ is “largely controlled by equitable principles,” Duncan Townsite Co. v. Lane, 245 U.S. 308, 311–12 (1917) (Brandeis, J.); see also Clinton v. Goldsmith, 526 U.S. 529, 537 (1999) (“The All Writs Act invests a court with a power essentially equitable . . . .”), the Veterans Court enjoys flexibility to fashion the appropriate relief in a given case, see Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (“The essence of equity jurisdic-tion has been the power . . . to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.”). In TRAC itself the court “fashion[ed] a remedy for the specific instances presented by [that] case”—withholding mandamus, yet re-taining jurisdiction and ordering the agency to provide (1) the dates by which it anticipated resolving the claims; and (2) periodic progress reports. TRAC, 750 F.2d at 80–81, 81 nn.43–44. Therefore, even if compelling an “imme-diate” decision (or one within 45 days) were inappropriate
7 We note that Mrs. Mote did not request an “imme-diate” Board decision; she requested a decision within 45 days of the Veterans Court’s order. J.A. 68. Case: 19-2367 Document: 51 Page: 13 Filed: 09/28/2020
14 MOTE v. WILKIE
in view of the pending hearing, the Veterans Court was not powerless to fashion other relief, such as giving the Board a more lenient, yet still specific, deadline by which to issue a decision. A genuine TRAC analysis may have informed not only whether to provide Mrs. Mote any relief but also the appropriate character of that relief.
Here, it is enough to say that the Veterans Court should have considered the TRAC factors before dismissing Mrs. Mote’s petition. Its failure to do so was legal error.
B
Having maintained that the Veterans Court did not need to consider the TRAC factors, the government also ar-gues that it’s “clear” the court did consider them. Appel-lee’s Br. 24–25. But we just don’t see it. As with Cheney, the TRAC factors made a quick exit after their initial ap-pearance. And, in advancing this argument, the govern-ment misunderstands some of these factors.
For example, it argues that the Veterans Court consid-ered the first TRAC factor—requiring that an agency’s time to make decisions be governed by a “rule of reason”—by “address[ing] the reason Mrs. Mote had not yet received a [B]oard decision.” Appellee’s Br. 25. But the only reason the Veterans Court gave was the pendency of Mrs. Mote’s hearing. Contrary to the government’s suggestion, the first TRAC factor’s “rule of reason” contemplates more than simply identifying the next prerequisite in the process; it contemplates whether the entire delay has been reasona-ble. In noting the hearing’s pendency, the Veterans Court did not consider whether it was reasonable that the hear-ing had not already taken place—nor, more generally, whether it was reasonable that after several years Mrs. Mote had yet to receive a decision from the Board.
The government also argues that the Veterans Court considered TRAC factor five—the nature and extent of the interests prejudiced by delay—by addressing Mrs. Mote’s Case: 19-2367 Document: 51 Page: 14 Filed: 09/28/2020
MOTE v. WILKIE 15
“interest in receiving [a Board] decision immediately.” Ap-pellee’s Br. 25. Though somewhat unclear from its brief, to the extent the government suggests that this factor is ad-dressed simply by disposing of a petition that seeks action, the government is mistaken. Indeed, it could always be ar-gued that, by disposing of the petition, the court has ad-dressed (even indirectly) the petitioner’s “interest” in that action. But this factor clearly contemplates more than that. As we explained in Martin, this factor “incorporates an analysis of the effect of a delay on a particular vet-eran”—including the extent to which the veteran is de-pendent on the requested benefits.8 891 F.3d at 1347 (emphasis added).
Ultimately conceding that the Veterans Court did not proceed “step-by-step” through an analysis of each TRAC factor, the government nonetheless stresses that courts have latitude when crafting their opinions. Appellee’s Br. 24–25. Indeed, they do. But Mrs. Mote’s quarrel, and our concern, is not so much with the opinion’s organization or its treatment of one TRAC factor or another; it’s that, on a potentially meritorious mandamus petition, the opinion failed to consider those factors at all. See Reply 19–20; Oral Arg. at 28:14–28. And, to the extent the government’s ar-gument implies that a rote walk-through of the factors is what this court expects, that is not so. Martin recognized the flexibility of the inquiry, noting that the TRAC stand-ard is “hardly ironclad, and sometimes suffers from vague-ness,” and that “each case should be analyzed based on its unique circumstances.” See 891 F.3d at 1345 (first quoting TRAC, 750 F.2d at 80; and then citing Am. Hospital Ass’n, 812 F.3d at 189). The point is not merely to check boxes; it’s to engage with factors that help illuminate the manda-mus inquiry to more reliably reach a sound result.
8 The veteran is, of course, in the best position to sub-stantiate particularized claims of prejudice. Case: 19-2367 Document: 51 Page: 15 Filed: 09/28/2020
16 MOTE v. WILKIE
We must, however, decline Mrs. Mote’s invitation to en-gage with these factors in the first instance. See Appel-lant’s Br. 22–28, 30, 41–42. Instead, the Veterans Court should do so, as that is the court to which the petition is made. See Martin, 891 F.3d at 1343 n.5 (“‘Because the is-suance of the writ is a matter vested in the discretion of the court to which the petition is made, and because this [c]ourt is not presented with an original writ of mandamus,’ we need not analyze each traditional mandamus require-ment.” (quoting Cheney, 542 U.S. at 391)). Whether a delay is so egregious as to justify the extraordinary writ depends on issues that are likely to arise with some frequency among veterans. The Veterans Court—a court Congress established specifically for judicial review concerning vet-erans’ benefits claims9—is uniquely well positioned to ad-dress these issues first. Therefore, as in Martin, we deem it appropriate to remand to the Veterans Court for a genu-ine consideration of Mrs. Mote’s petition under the TRAC standard—though we do so reluctantly, and warily, given this case’s history and a remand’s potential to prolong the complained-of delay.
C
Mrs. Mote additionally argues that the Veterans Court erred by failing to address her claim that, under the factors outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the delay she has experienced violates procedural due pro-cess. Appellant’s Br. 16–17, 31–32. In Martin, we ad-dressed appellants’ separate due process claims and observed that “a claim that a plaintiff has been denied due process because of delayed agency action is essentially no different than an unreasonable delay claim.” 891 F.3d at 1348 (quoting Vietnam Veterans of Am. v. Shinseki, 599
9 See Veterans’ Judicial Review Act, Pub. L. No. 100-687, Div. A, Title III, 102 Stat. 4105, 4113–22 (1988); see generally H.R. Rep. No. 100-963, pt. 1 (1988). Case: 19-2367 Document: 51 Page: 16 Filed: 09/28/2020
MOTE v. WILKIE 17
F.3d 654, 660 (D.C. Cir. 2010)). We also held that, on re-mand, “the Veterans Court will have the opportunity to de-termine, under the TRAC standard, whether the delay” was unreasonable. Id.; see id. at 1348–49 (“If the Veterans Court, employing the TRAC analysis, finds a delay unrea-sonable (or not unreasonable), it need not separately ana-lyze the due process claim based on that same delay.”). Because on remand the Veterans Court failed to employ the TRAC analysis to assess the delay’s reasonableness, and because we remand again for that analysis, we adopt a similar disposition here.
CONCLUSION
We find it necessary to repeat today what we said in Martin: The TRAC standard is “the appropriate standard for the Veterans Court to use in evaluating mandamus petitions based on alleged unreasonable delay.” Martin, 891 F.3d at 1348. Because the Veterans Court did not apply this standard as required here, we again vacate the court’s judgment and remand for it do so.
VACATED AND REMANDED
COSTS
Costs to Claimant-Appellant. Case: 19-2367 Document: 51 Page: 17 Filed: 09/28/2020

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.