Argument Preview / Panel Activity

The third of four cases being argued next week at the Federal Circuit that attracted amicus briefs is Monk v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) Did the Court of Appeals for Veterans Claims misinterpret 38 U.S.C. § 7261(a)(2) in holding that a five-year delay in deciding a disabled veteran’s administrative appeal does not amount to an unreasonable delay; (2) Did the CAVC misinterpret and misapply the Fifth Amendment Due Process Clause in holding that such a five-year delay does not violate the veteran’s due process rights; and (3) Did the CAVC misinterpret the mootness standard in dismissing certain Appellants’ claims. This is our argument preview.

The veterans argue in their opening brief that, in this case, the CAVC committed two fundamental errors. First, the veterans contend, “the en banc CAVC misinterpreted the standard that governs Mr. Dolphin’s statutory right to be free from unreasonable delay.” They criticize the CAVC for holding that “‘total [inaction] is required’ to show unreasonable delay.” Instead, the veterans explain, the standard set by the Federal Circuit in Martin v. O’Rourke should govern this case. According to the veterans, “the Martin Court held that the CAVC must use the six-factor test from Telecommunications Research and Action Center v. FCC [TRAC]. . . and that egregious delay is not excused simply because the VA has taken any intermediate actions in a veteran’s case.” Second, the veterans argue that, under 38 U.S.C. § 7292(d)(2), “the CAVC failed to independently analyze Mr. Dolphin’s constitutional due process claim, an issue this Court is mandated to review.” The veterans explain that, “[u]nder the three-prong test that governs due process claims challenging agency delay, . . . the five-year delay in [the veteran’s] case violated the Fifth Amendment.” Furthermore, the veterans assert, under this test, “[the veteran’s] private stake in receiving a decision on his appeal is substantial: he is elderly, disabled, and wholly dependent on VA benefits.” Therefore, according to the veterans, the court “should hold that the Secretary violated his constitutional rights.”

Additionally, the veterans argue “the claims of Mr. Dolphin and the other Appellants are not moot” but instead fall “within two exceptions to the mootness doctrine.”

In its response brief, the Secretary of Veterans Affairs first responds that the veterans’ arguments are moot. According to the Secretary, this is so because “each has received the relief requested in their petitions: a favorable decision or board decision on their appeals.” Moreover, the Secretary argues, “any future appeals they file will be governed by the more streamlined [Veterans Appeals Improvement and Modernization Act of 2017] system—making it exceedingly unlikely that they will again be subject to the processing times they have previously experienced.”

Even if the court reaches the issue of unreasonable delay, the Secretary contends, the court “should hold that the Veterans Court did not abuse its discretion in declining to issue a writ for Mr. Dolphin.” According to the Secretary, “the [CAVC] assessed his entitlement to a writ of mandamus based on unreasonable delay by applying the six TRAC factors to his circumstances.” Further, the Secretary asserts, “a fair review of the decision reflects that the court was simply considering all the relevant factors, consistent with this Court’s decision in Martin.”

It its reply, the veterans first respond to the Secretary’s argument the AMA renders the case moot. According to the veterans, “the AMA has no bearing on Appellants’ experiences, the legal errors committed below, or the hundreds of thousands of veterans in the legacy system whose rights are continuously violated.” The veterans then make three substantive arguments in reply to the Secretary. First, the veterans contend “this Court possesses jurisdiction to review the CAVC’s legal errors.” Second, they say “the CAVC misconstrued the TRAC ‘unreasonable delay’ standard in contravention of Martin and other circuit case law.” Lastly, they reiterate their Fifth Amendment Due Process claim. They argue the due process claim “raises distinct issues from the statutory delay claim for two reasons: (1) this Court’s jurisdiction is broader for constitutional issues than statutory issues, and (2) the factors that a court must consider in deciding a delay claim under TRAC and due process are distinct.”

Three separate amicus briefs were filed in this case by the Connecticut Veterans Legal Center and Swords to Plowshares; former VA General Counsels Will A. Gunn and Mary Lou Keener; and the National Law School Veterans Clinic Consortium. Notably, each amicus brief support of the veterans-appellants.

Oral arguments will be heard on Wednesday, November 4. We will keep track of this case and report on any developments.