This week, the Federal Circuit issued its opinion in Monk v. Tran, a veterans case we have been following because it attracted an amicus brief. Judge Chen authored a unanimous panel opinion affirming in part a decision of the Court of Appeals for Veterans Claims and dismissing in part the appeal as moot. Specifically, the Federal Circuit agreed that a petition for a writ of mandamus filed at the Veterans Court was moot with respect to several veterans because, after the filing the petition but before the Veterans Court’s disposition of the petition, those veterans received decisions by the Board of Veterans Appeals. The Federal Circuit similarly dismissed as moot another veteran’s appeal because, by the time of the Federal Circuit’s disposition of his appeal, he had received a Board decision on the merits of his case. This is our opinion summary.
In this case, veterans argued that a five year delay in resolving appeals of adverse decisions by Veterans Affairs constituted an unreasonable delay under 38 U.S.C. § 7261(a)(2), which violated their due process rights. Further, they argued that Veterans Court improperly dismissed the case as moot with respect to those veterans who had received decisions by the Board at the time of the Veterans Court’s disposition of their petition on point.
As mentioned, Judge Chen authored the unanimous opinion. He was joined by Judges Newman and Lourie.
Judge Chen summarized the background of the case:
[Appellants] are military veterans who sought disability benefits. . . . After waiting a period of time for decisions from the Board, Appellants filed a petition for writ of mandamus at the United States Court of Appeals for Veterans Claims (Veterans Court) alleging unreasonable delay by the Board in acting on their appeals. The Veterans Court denied the petition with respect to Mr. Dolphin, finding no unreasonable delay, and dismissed the petition with respect to all other petitioners as moot, due to the Board by then having issued decisions on their appeals. Appellants appeal both decisions. . . . Before briefing in this appeal began, on February 4, 2020, the Board acted on Mr. Dolphin’s appeal. . . . Appellants notified this court that although the Board’s February 2020 decision appeared to resolve all of Mr. Dolphin’s claims, it did not in fact address the effective date he was seeking for his total disability based on individual unemployability (TDIU) claim. . . . Following oral argument, on December 3, 2020, the Secretary notified the court that the Board issued a decision on November 24, 2020 granting Mr. Dolphin the earlier effective date he sought for his TDIU claim.
The Federal Circuit began its analysis by considering the case of Mr. Dolphin, the one veteran who still had not been issued a decision by the Board at the time the Veterans Court issued its decision on the petition.
The veterans argued that Mr. Dolphin still has a live claim because his February 2020 Board decision remanded some of his claims, citing the Federal Circuit’s recent decision in Mote. The court rejected this argument, explaining that, while Mr. Dolphin received a “mixed decision—one that includes grants, a denial, and remands,” he still received a “decision.” The court concluded that Mr. Dolphin’s claim thus became moot, because he received all his requested relief, a decision on his appeal.
Next, the court analyzed whether any of the veterans who now had all received their requested relief by the time of the Veterans Court’s decision on their petition fit into any of the exceptions to mootness.
The Federal Circuit found no applicable exception for voluntary mootness. The court explained that VA’s action causing the case to become moot did not, on its own, make the voluntary mootness exception applicable. In particular, VA explained it did not advance the veterans’ cases in order to suspend the litigation, but rather addressed them in the normal course of proceedings, addressing the claims by docket number order.
The Federal Circuit likewise rejected the argument that this case fit within the capable-of-repetition-but-evading-review exception to mootness. The veterans argued that, because they have faced delays before, “there is a reasonable expectation that they will face that same harm again in pending or future appeals.” The court rejected this argument, however, explaining that there was “no showing beyond bare attorney argument that this harm is sufficiently likely to recur to these particular veterans.”
Given that no mootness exception applied, the Federal Circuit affirmed the Veterans Court’s determination of mootness for all veterans except Mr. Dolphin, and, as discussed above, it dismissed Mr. Dolphin’s appeal as moot.