Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6570
BLAINE T. SULLIVAN, PETITIONER,
AND
STACEY SULLIVAN, PETITIONER,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before PIETSCH, Judge.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On September 15, 2020, the petitioners, veteran Blaine Sullivan and his caregiver-mother
Stacey Sullivan, filed through counsel a petition in the nature of a writ of mandamus. In the
petition, they ask the Court to compel the Secretary to allow them to appeal to the Board of
Veterans’ Appeals (Board) a revocation of caregiver benefits they receive under the Program of
Comprehensive Assistance for Family Caregivers (the Caregiver Program). See 38 U.S.C.
§ 1720G; Petition (Pet.) at 5, 9-15. The petitioners also assert that in August 2019 they filed a
Notice of Disagreement (NOD) from a March 7, 2018, decision of the director of the VA Sierra
Pacific Network concerning caregiver benefits, and they request that the Secretary allow the Board
to “take up immediate review of [this] appeal on the merits.” Id. at 6-7, 15, Exhibit D at 17-18.
On January 11, 2021, the Court granted the Secretary’s motion to stay proceedings pending
a decision in Beaudette v. Wilkie, U.S. Vet. App. No. 20-4961. The Court issued a precedential
decision on April 19, 2021. See Beaudette v. McDonough, 34 Vet.App. 95 (2021). In Beaudette, the Court granted the petitioners’ petition for a writ of mandamus ordering the Secretary to begin notifying claimants of their right to appeal adverse determinations under the Caregiver Program to the Board. In addition, the Secretary certified a class under the Court’s Rules of Practice and Procedure. See U.S. VET. APP. R. 22, 23. The Court defined the class as all claimants who (1) received an adverse benefits determination under the Caregiver Program, (2) exhausted the administrative review process under the Veterans Health Administration (VHA), and (3) were denied the right to appeal the adverse determination to the Board.
2
On May 4, 2021, the Court lifted the stay of proceedings and ordered the petitioners to
show cause why their petition should not be dismissed considering the Court’s ruling in Beaudette,
because the petitioners are included in the certified class and the injunctive relief ordered in
Beaudette applies to every member of the class. On May 18, 2021, the petitioners responded,
acknowledging that the Court’s decision in Beaudette partially answered the petition in that it
recognized a right to appeal the Caregiver Program determination to the Board. Petitioner’s May
2021 Response at 2. Yet the petitioners assert that the ruling in Beaudette did not resolve their
request for the Court to compel VA, without further action by the petitioners, to immediately issue
an SOC on their August 2019 NOD. Id. at 2-3.
On August 17, 2021, the Court ordered the Secretary to respond to the petitioners’ assertion
that VA should immediately resolve their August 2019 NOD. On October 7, 2021, the Secretary
responded to the Court’s order,1 explaining that the Secretary has been under an obligation to
resolve Caregiver Program appeals only since the Court’s April 19, 2021, ruling in Beaudette, that
VHA is “taking the required steps to process Petitioners’ NOD,” and explaining that the Secretary
has not unreasonably delayed acting on the petitioners’ NOD. Secretary’s Oct. 2021 Response at
- The Secretary also responds that, as the Court recognized in its May 4, 2021, order to show
cause why the petition should not be dismissed, the petitioners are members of the class certified
in Beaudette, will receive the injunctive relief afforded to the class, and cannot opt out of the class.
Id. at 3.
The Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction
pursuant to the All Writs Act. 28 U.S.C. § 1651(a). But “[t]he remedy of mandamus is a drastic
one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976). Accordingly, three conditions must be met before the Court may issue a writ: (1) The
petitioner must lack adequate alternative means to attain the desired relief, thus ensuring that the
writ is not used as a substitute for the appeals process; (2) the petitioner must demonstrate a clear
and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances,
that the issuance of the writ is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81
(2004).
The petitioners do not contest that the Court’s decision in Beaudette has resolved the part
of their petition requesting the ability to appeal the March 7, 2018, Caregiver Program
determination to the Board. Petitioner’s May 2021 Response at 2. As to the petitioners’ contention
that the Board has unreasonably delayed acting on their August 2019 NOD, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) has stated that “the overarching inquiry in
analyzing a claim of unreasonable delay is ‘whether the agency’s delay is so egregious as to warrant
mandamus.'” Martin v. O’Rourke, 891 F.3d 1338, 1344 (Fed. Cir. 2018) (quoting Telecomms. Rsch.
& Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)). In Martin, the Federal Circuit
held that this Court should evaluate mandamus petitions based on unreasonable delay by
considering the six TRAC factors. Id. at 1345; see Mote v. Wilkie, 976 F.3d 1331, 1334 (Fed. Cir.
2020) (concluding that “the TRAC factors should be considered before dismissing or otherwise
denying mandamus petitions alleging unreasonable agency delay”). In TRAC, for determining
1 On October 13, 2021, the Secretary filed an unopposed motion out of time to amend his October 7, 2021,
response to correct a typographical error, which the Court granted. All references are to the amended response.
3
whether unreasonable agency delay warrants mandamus, the U.S. Court of Appeals for the D.C.
Circuit fashioned a standard that requires us to consider the following:
(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 the 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.
750 F.2d at 80 (citations and internal quotation marks omitted).
The first two TRAC factors concern whether the time VA takes to make decisions is
governed by a rule of reason and concern the applicability of congressional timelines. There is no
hard-and-fast rule concerning what constitutes an unreasonable delay or qualifies as a “rule of
reason” under the first TRAC factor. Martin, 891 F.3d at 1346. Further, there is no congressionally
mandated timeline for the Board to process Caregiver Program appeals. The petitioners were aware
when they filed their petition that the Secretary’s position was that Caregiver Program
determinations were not appealable to the Board. Pet. at 6 (noting VA’s correspondence
communicating that the petitioners could appeal through the Veterans Health Administration but
“could not seek review by the Board”). As the Secretary explains, the Board was under no
obligation to act on the petitioners’ August 2019 NOD until April 19, 2021, when the Court held
that the plain language of the Caregiver Program statute did not insulate decisions under the
Caregiver Program from judicial review. Secretary’s Oct. 2021 Response at 4; Beaudette,
34 Vet.App. at 105. And, as the Secretary acknowledges, the petitioners are part of the Beaudette
class, and the injunctive relief ordered by the Court applies to every member of the class. Skaar v.
Wilkie, 32 Vet.App. 156, 200 (2019); see U.S. VET. APP. R. 23. From the time the Court issued its
decision in Beaudette, the Secretary asserts that VA has been actively developing processes and
procedures for reviewing NODs and issuing SOCs, including hiring and training staff. See
Secretary’s Oct. 2021 Response at 9. Though any delay in implementing these processes is
regrettable, the Court does not discern an unreasonable delay with respect to the petitioners’
Caregiver Program appeal as compared with similarly situated class members.
The third and fifth TRAC factors focus on the interest of the veteran. Veterans’ claims for
benefits always involve health and human welfare, and delays in receiving decisions on benefits
are prejudicial to veterans. Though the Court recognizes the Secretary’s argument that Mr. Sullivan
is not wholly dependent on caregiver benefits, Secretary’s Oct. 2021 Response at 10, the petitioners
request resolution of their appeal of a revocation of caregiver benefits, and with their August 2019
NOD the petitioners include a statement of the continuing effect of not receiving this benefit. Pet.
Appendix at 20. Consequently, these two TRAC factors generally weigh in favor of the petitioners’
request for a writ.
4
As to the fourth factor, the effect of granting a writ on competing agency priorities, here
this factor weighs against the issuance of a writ. The Secretary has acknowledged the petitioners’
concern over the delay that may be caused by the time it takes to issue notice to class participants.
Secretary’s Oct. 2021 Response at 8. The Secretary has also explained that “the Petitioners’ NOD
has been received and is simply awaiting review and action via the issuance of [a] decision granting
the benefit or the issuance of a[n] SOC, as appropriate,” and that their “NOD is next in line to be
addressed after the Beaudette petitioners.” Id. Given that VA is required to address all class
members’ appeals, granting a writ in this case would shift resources away from adjudicating claims
from similarly situated class members.
The sixth TRAC factor is a caution that the Court need not find impropriety to find that
delay was unreasonable. See Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 60 (2020). Though the
petitioners have not alleged nor has the Court found any impropriety, the Court has considered this
caution.
Having considered the TRAC factors, the Court concludes that the petitioners fail to
demonstrate that they are entitled to a writ because they have failed to show that VA has
unreasonably delayed action on their Caregiver Program appeal. See Cheney, 542 U.S. at 380-81.
The Court will therefore deny this petition and trust that the Secretary will act expeditiously to
resolve the petitioners’ appeal, having acknowledged that they are “next in line” to receive action
on their NOD after the Beaudette class representatives.
On consideration of the above, it is
ORDERED that the petition is DENIED.
DATED: October 25, 2021 BY THE COURT:
CORAL W. PIETSCH
Judge
Copies to:
Todd C. Toral, Esq.
VA General Counsel (027)
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