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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

10. 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)