Ebanks v. Shulkin, 877 F.3d 1037

Elon Ebanks filed for increased VA disability ratings for PTSD, hearing loss, tinnitus, and arthritis; the RO denied the increase and he appealed to the Board on December 3, 2014, requesting a videoconference hearing under 38 U.S.C. § 7107.
The Board did not schedule a hearing for nearly three years; Ebanks sought a writ of mandamus from the Court of Appeals for Veterans Claims for unreasonable delay; that court denied relief and Ebanks appealed to the Federal Circuit.
While the appeal was pending, the Board held the requested hearing on October 11, 2017; the government argued that this mooted the appeal.
Ebanks invoked the "capable of repetition, yet evading review" exception to mootness, arguing he reasonably could expect future delays if he sought further hearings after remands or RO adjudication.
The government countered that recent statutory reforms (VAIMA) and expedited procedures on remand reduce the likelihood that Ebanks would face the same multi-year delay, and that any future repetition is speculative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness — whether the appeal is rendered moot by the Board holding the requested hearing	Ebanks: the case fits the "capable of repetition, yet evading review" exception because average Board-hearing delays are long and he is likely to face the same delay again on remand or subsequent appeals	Government: the hearing renders the dispute moot; future recurrence is speculative, especially given VAIMA reforms and expedited remand procedures	The court held the case is moot: Ebanks failed to show a reasonable expectation he will face the same action again; dismissal for lack of jurisdiction is required
Appropriateness of individual mandamus relief for systemic delays	Ebanks sought mandamus to compel scheduling of his hearing because of unreasonable delay	Government: granting individual mandamus would amount to line-jumping and not resolve systemic backlog	The court questioned individual mandamus as an appropriate remedy for queue delays and suggested class-action or systemic relief is preferable, but did not grant relief because the case was moot

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) (describing narrow application of "capable of repetition, yet evading review" exception)
Spencer v. Kemna, 523 U.S. 1 (1998) (explaining limits of mootness exceptions)
Murphy v. Hunt, 455 U.S. 478 (1982) (rejecting mootness exception given only theoretical possibility of recurrence)
Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017) (applying Spencer/Murphy standard to speculative recurrence)
In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) (rejecting mandamus that merely advances petitioner in administrative queue)
Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) (approving collective action approach for VA delays)
Camreta v. Greene, 563 U.S. 692 (2011) (discussing vacatur and remand when case becomes moot on appeal)
United States v. Munsingwear, 340 U.S. 36 (1950) (establishing practice of vacatur when cases become moot on appeal)
Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81 (D.C. Cir. 1984) (supporting systemic relief in administrative-delay contexts)