Argument Recap / Panel Activity

Yesterday, the Federal Circuit heard oral argument in Monk v. Wilkie, a veterans case we have been following because it attracted four amicus briefs. This case presents three issues: (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 claims. This is our argument recap.

Madison Needham, a law student intern, argued first on behalf of the veterans. She began by pointing that Mr. Dolphin has waited over seven years for his benefits claim to be decided. Judge Newman immediately interjected, asking to clarify that some decisions had been made regarding his claim during this period. She asked what issues are left to be decided. Needham responded that the remaining issue is Mr. Dolphin’s effective date for his benefits.

Judge Chen and Newman then asked multiple questions concerning whether the Board of Veterans’ Appeals had in fact made a final decision with regard to Mr. Dolphin’s claims. Needham responded that Mr. Dolphin received some resolution, but other issues had been remanded and not resolved.

Judge Lourie asked whether, if there was an unresolved claim, how the court has jurisdiction over the appeal. Needham argued that the court has jurisdiction because what is being appealed is the CAVC’s interpretation of what constituted an unreasonable delay.

Judges Lourie and Newman then asked a series of questions regarding whether all of the appellants or just Mr. Dolphin were part of the case before the court. After some back and forth, Needham contended that all of the appellant veterans were part of the case before the court.

David Pehlke argued for the Secretary of Veterans Affairs. He first clarified that all of the veteran appellant’s claims are moot with the exception of Mr. Dolphin, who he conceded still has the live issue on appeal of his effective date for his benefits. Thus, he argued the only petitioner with an issue before the court is Mr. Dolphin.

Next, Pehlke emphasized the complexity of Mr. Dolphin’s case. He highlighted that the case has undergone multiple delays, but, he argued, it is not as simple as a seven-year delay with no activity. Rather, he argued, all along the way fact finding and numerous medical exams were taking place to resolve seventeen complex claims.

Judge Lourie asked what Pehlke generally wanted the court to do in this case. Pehlke said that, first, the court should recognize the mootness of the other veterans’ cases and, then, take a hard look at whether Mr. Dolphin has presented a nonfrivolous legal issue to give the court jurisdiction.

Before he could continue his argument, Judge Newman asked specifically what kind of relief should be given in this case. Pehlke asserted that mandamus is not the appropriate relief. Furthermore, Pehlke maintained, the effective date claim is an issue to be decided by the CAVC, and thus the case should be remanded to that court.

Judge Chen asked whether it was Pehlke’s best guess that the CAVC just happened to miss the issue. Pehlke responded that he believed so, otherwise the effective date likely would have followed the other claims. He conceded, however, that he did not know the answer for sure.

Lynn K. Neuner argued for the appellant veterans in rebuttal. She began by addressing the question of what petitioners had live claims before the court, and she affirmatively asserted that Mr. Dolphin indisputably has a live petition for mandamus for the effective date of his benefits, a question she alleged has remained undecided for six years. Additionally, she argued, the other three petitioners have received decisions but have made arguments regarding erroneous interpretations by the CAVC, which fit within an exception to the mootness doctrine. She further asserted that the six-year delay is unconstitutional and unreasonable.

We will keep track of this case and report on its disposition.