Veteranclaims’s Blog

March 2, 2022

Single Judge Application; first and second TRAC factors; the Court must examine, in the context of the statutory scheme governing veterans’ benefits, the length of the alleged delay and VA’s justification for it. See Martin, 891 F.3d at 1345-46; see also Godsey v. Wilkie, 31 Vet.App. 207, 226-27 (2019); Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 30, 36 (D.D.C. 2000) (stating that courts “must consider the agency’s justification for the pace of its decision” and must determine whether “[t]he pace at which the agency proceeds . . . follow[s] a rule of reason”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-6800
LEONARD W. HOUSTON, PETITIONER,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before MEREDITH, 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 October 18, 2021, the self-represented petitioner, Leonard W. Houston, filed a petition
for extraordinary relief in the form of a writ of mandamus compelling VA to expeditiously comply
with a February 16, 2021, Board of Veterans’ Appeals (Board) remand. Petition (Pet.) at 1-12. The
petitioner asserted that the Board remanded nine disability compensation claims to obtain a
medical opinion from an appropriate clinician addressing whether his claimed conditions are
related to his exposure to contaminants in water at Camp Lejeune. Pet. at 3; see Exhibit A. The
petitioner indicated that, although the VA regional office (RO) obtained medical opinions shortly
after the Board remand, his claims, which had been advanced on the Board’s docket and are entitled
to expeditious treatment, had not been readjudicated by the RO. Pet. at 3-6. He further noted that,
in July 2021, he sent a letter to the RO, requesting compliance with the Board’s remand order and
expeditious treatment, but he had not received a response or a decision on his claims. Pet. at 6-10;
see Exhibit D. The petitioner asked the Court to find that VA unreasonably delayed compliance
with the Board remand, to hold unconstitutional any practice that interferes with speedy appeals,
and to order VA to promptly issue a decision.1 Pet. at 8.
The Secretary filed a response to the petition on November 22, 2021, outlining the actions
VA took following the Board’s February 2021 remand. Secretary’s Response (Resp.) at 2-3. The
1 The Court notes that the petitioner, at times, seems to request a decision from the Court on the merits of his
claims. See, e.g., Pet. at 8-9. Because it is well settled, however, that “‘extraordinary writs cannot be used as substitutes
for appeals, even though hardship may result from delay and perhaps unnecessary trial,'” Lamb v. Principi, 284 F.3d
1378, 1384 (Fed. Cir. 2002) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)), the Court cannot
entertain that request and will instead focus on whether VA has unreasonably delayed adjudication of the remanded
claims.
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Secretary notes that on February 22, 2021, 6 days after the Board remanded the petitioner’s claims,
the RO requested the necessary medical opinions through VA’s contract examiners and that the
RO received all but one opinion on March 10, 2021. Secretary’s Resp. at 2. The Secretary next
contends that on October 8, 2021, before the instant petition was filed, the RO requested an update
regarding the status of the outstanding medical opinion. Secretary’s Resp. at 2. The Secretary avers
that the RO received the opinion on October 11, 2021, and within 2 weeks, VA reviewed the
petitioner’s appeal to determine whether it was ready for a decision. Secretary’s Resp. at 2. The
Secretary asserts that VA determined that additional development was necessary because VA
received a statement from the petitioner on June 30, 2021, in which he alleged herbicide exposure
and identified private medical evidence. Secretary’s Resp. at 2. The Secretary contends that the
necessary development is underway, noting that the RO requested information from the
Department of Defense concerning the alleged herbicide exposure and that the RO sent a letter to
the petitioner requesting that he authorize VA to obtain the identified medical records. Secretary’s
Resp. at 2-3. Attached to the Secretary’s response is a declaration from a supervisor at the
Louisville, Kentucky, VA RO with personal knowledge of the foregoing actions. Secretary’s Resp.;
Exhibit at 1-3.
Turning to whether a writ is warranted, the Secretary acknowledges that there has been
some delay following the Board remand related to receipt of one of the requested medical opinions
but contends that this is not a situation of complete inaction by VA. Secretary’s Resp. at 4-5. The
Secretary notes that VA followed up on the request and received the opinion in October 2021,
shortly before the petition was filed, and that VA cannot properly readjudicate the claims because
VA initiated additional development, which was prompted by the petitioner’s June 2021 statement.
Secretary’s Resp. at 4-5. The Secretary thus contends that VA’s actions demonstrate ongoing
efforts to bring this matter to a conclusion, the factors relevant to assessing unreasonable delay
weigh against granting a writ, and the petitioner has not demonstrated a clear and indisputable
right to a writ. Secretary’s Resp. at 4-7.
On November 24, 2021, the Court received from the petitioner a response to the Secretary’s
response to the petition, in which the petitioner requests permission to file a reply clarifying the
issues raised by the petition, and he disputes the Secretary’s contention that he has not
demonstrated entitlement to a writ. The Court will construe the petitioner’s filing as both a motion
for leave to file a reply and as a reply; grant the motion; and direct the Clerk of the Court (Clerk)
to file the construed motion for leave to file a reply and reply as of the date of this order. See U.S.
VET. APP. R. 2.
In his reply, the petitioner acknowledges that VA took some action on the Board’s February
2021 remand, but he contends that the RO’s requests for medical examinations reflect VA’s “efforts
to develop to deny.” Reply at 2. He further notes that, in March 2021, he submitted a Notice of
Disagreement (NOD), asserting that the examiner was not competent to provide an opinion
regarding the remanded disabilities. Reply at 3; Exhibits A-C. The petitioner contends that he lacks
alternative means to obtain the desired relief and reiterates his request for a writ of mandamus.
Reply at 3.
This Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant
to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir.
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1998). This includes writs of mandamus to “compel action of the Secretary unlawfully withheld
or unreasonably delayed.” 38 U.S.C. § 7261(a)(2); see Martin v. O’Rourke, 891 F.3d 1338, 1343
(Fed. Cir. 2018). However, “[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 a 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 an appeal; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and
(3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted.
See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004). The burden of showing entitlement
to a writ of mandamus rests with the petitioner. Erspamer v. Derwinski, 1 Vet.App. 3, 9 (1990).
Here, the petitioner’s request to compel VA action regarding the February 2021 Board
remand is based on a claim of unreasonable delay. When delay is alleged as the basis for a petition,
“the overarching inquiry . . . is ‘whether the agency’s delay is so egregious as to warrant
mandamus.'” Martin, 891 F.3d at 1344 (quoting Telecomms. Research & Action Ctr. v. FCC
(TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)). In TRAC, the U.S. Court of Appeals for the District of
Columbia Circuit identified six factors relevant to that inquiry:
(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.
750 F.2d at 80 (internal quotation marks and citations omitted); see Mote v. Wilkie, 976 F.3d 1337,
1346 (Fed. Cir. 2020).
As to the first and second factors, the Court must examine, in the context of the statutory
scheme governing veterans’ benefits, the length of the alleged delay and VA’s justification for it.
See Martin, 891 F.3d at 1345-46; see also Godsey v. Wilkie, 31 Vet.App. 207, 226-27 (2019);
Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 30, 36 (D.D.C. 2000) (stating that courts “must
consider the agency’s justification for the pace of its decision” and must determine whether “[t]he
pace at which the agency proceeds . . . follow[s] a rule of reason”).
Here, the petitioner initially
alleged that VA failed to comply with the Board’s February 2021 remand, which directed the
agency of original jurisdiction to obtain medical opinions addressing whether the petitioner’s
claimed disabilities are related to his exposure to contaminated water at Camp Lejeune. Pet. at 3-6.
VA obtained all but one medical opinion within 1 month of the Board remand, and in October
2021, VA followed up on the outstanding opinion and received the opinion before the petitioner
filed the instant petition. Secretary’s Resp; Exhibit at 2-3. The Court is cognizant of VA’s statutory
duty to provide expeditious treatment, 38 U.S.C. § 5109B, but also notes that the delay complained
4
of here is not based on “complete inaction by . . . VA,” Martin, 891 F.3d at 1346; indeed, the RO
has completed the Board-ordered development, Secretary’s Resp. at 4; Exhibit at 2-3.
Although the RO has not yet readjudicated the remanded claims, the Secretary’s response
reflects that the petitioner’s June 30, 2021, statement triggered VA’s duty to complete additional
development unrelated to the Board’s remand, i.e., the petitioner’s statement triggered VA’s duty
to investigate his allegation of herbicide exposure and to obtain his private medical records.
Secretary’s Resp. at 2; Exhibit at 2. In light of the foregoing, the Court cannot conclude that the
petitioner has demonstrated that VA’s actions have not been governed by a rule of reason. See
Martin, 891 F.3d at 1346 (“The ‘rule of reason’ analysis may also consider whether the delays
complained of are based on complete inaction by the VA, or whether the delays are due in part to
the VA’s statutory duty to assist a claimant in developing his or her case.”). Therefore, the first two
TRAC factors do not weigh in his favor. See Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 59 (2020),
aff’d per curiam sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 WL 5144367
(Fed. Cir. Nov. 5, 2021).
Even though the third and fifth TRAC factors, which focus on the interests of the claimant
and how the individual is impacted by the alleged delay, would generally weigh in favor of a
claimant waiting for action, see Martin, 891 F.3d at 1346-47 (“Veterans’ disability claims always
involve human health and welfare.”), the remaining factors also do not support issuance of a writ.
Specifically, the fourth factor requires the Court to assess how granting a writ would impact VA’s
administrative activities, which may include considering potential detriment to “other applicants
who have filed claims for benefits.” Martin, 891 F.3d at 1347. The Court also may “take account
of the practical realities of the burdened veterans’ benefits system.” Martin, 891 F.3d at 1347. Here,
the petitioner does not show why his case should proceed at a faster pace than any other veteran’s
remanded claims, which are similarly undergoing additional development unrelated to the bases
for remand. Thus, this factor weighs against the petitioner. And, the sixth TRAC factor—making
clear that the Court is not required to find bad faith or intentional agency misconduct to justify the
issuance of a writ, Martin, 891 F.3d at 1347-48—does not tip the balance in the petitioner’s favor.
In sum, the Court finds that the TRAC factors for unreasonable delay weigh against the
petitioner. Therefore, the Court “need not separately analyze” whether VA’s complained of delay
violates due process. Martin, 891 F.3d at 1348-49 (“If the . . . Court, employing the TRAC analysis,
finds a delay unreasonable (or not unreasonable), it need not separately analyze the due process
claim based on that same delay.” (citing Viet. Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C.
Cir. 2010))).
Further, to the extent that the petitioner suggests in his reply that VA improperly developed
the remanded claims and that the VA contract examiner was not competent to provide the
requested opinions, the Court may not, especially in the context of a petition, render a decision on
these matters in the first instance. “[M]andamus may not be resorted to as a mode of review where
a statutory method of appeal has been prescribed.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21,
27-28 (1943); see Lamb, 284 F.3d at 1384; see also Gardner-Dickson, 33 Vet.App. at 60
(concluding in part that a writ was not warranted because the appeals process provided an adequate
alternative avenue of relief). As indicated in the NOD annexed to the petitioner’s reply, the proper
course is for the petitioner to raise these challenges to the Agency, and if he is unsuccessful, to
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appeal to this Court; the Court cannot issue a writ that would thwart the appellate process. Roche,
319 U.S. at 30.
The Court expects that VA will work promptly to complete the development initiated in
October 2021 and readjudicate the petitioner’s claims. If VA fails to act within a reasonable period
of time given the demands on the system, the petitioner may return to the Court and file a new
petition asking it to compel VA to act. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006),
aff’d sub nom. DiCarlo v. Peake, 280 F. App’x 988 (Fed. Cir. 2008).
Upon consideration of the foregoing, it is
ORDERED that the Clerk file the petitioner’s November 24, 2021, construed motion for
leave to file a reply and his reply as of the date of this order. It is further
ORDERED that the petitioner’s November 24, 2021, construed motion for leave to file a
reply is granted. It is further
ORDERED that the October 18, 2021, petition for extraordinary relief in the nature of a
writ of mandamus is DENIED.
DATED: December 8, 2021 BY THE COURT:
AMANDA L. MEREDITH
Judge
Copies to:
Leonard W. Houston
VA General Counsel (027)

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