Elon L. EBANKS, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
2017-1277
United States Court of Appeals, Federal Circuit.
December 14, 2017
1037
We are persuaded by the other circuits that have addressеd this issue and hold that a district court‘s denial of a non-binding recommendation to the BOP is not a final order subject to appellate review. Accordingly, we dismiss Martin‘s appeal for lаck of jurisdiction.
DISMISSED.
WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued fоr respondent-appellee. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE, MARTIN J. SENDEK, BRYAN THOMPSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before DYK, LINN, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Elon Ebanks filed a claim for veterans benefits for service-connected posttraumatic stress disorder, hearing loss, tinnitus, and arthritis. His claim for an increased disability rating was denied by the Department of Veterans Affairs (“VA“) Regionаl Office (“RO“) on October 9, 2014, and on December 3 he sought review by the Board of Veterans Appeals (“Board“). Mr. Ebanks simultaneously requested a videoconference hearing before the Board pursuant to
When by September 16, 2016, almost two years later, the Board had not scheduled Mr. Ebanks for a hearing, he sought a writ of mandamus from the Court of Appeals for Veterans Claims, claiming unreasonable delay and seeking to compel the Board to schedule a hearing. The Court of Appeals for Veterans Claims denied relief, and Mr. Ebanks appealed to this court. While his appeal was pending before this court, the Board held the requested hearing on October 11, 2017—nearly three years after his initial request.
The delay experienced by Mr. Ebanks is typical. At oral argument, the government conceded that the average delay just to schedule a hearing is three years. The consequence is that veterans routinely suffer substantial delays in receiving hearings to which they are entitled.
The government now claims that this appeal is moot because Mr. Ebanks has received his hearing. Mr. Ebanks asserts that the case is not moot because it falls within the exception to mootness for cases that are capable of repetition yet evading review. That doctrine “applies ‘only in exceptional situations,’ where (1) ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the
We ordered supplemental briefing on this issuе. In that supplemental briefing, Mr. Ebanks asserted that even if he prevailed before the Board, the relief awarded is typically a remand to the RO, and his claim will require further adjudicatiоn by the RO to determine whether increased benefits should be awarded and the effective date of his rating. Moreover, he asserts his expectation that he will appeal thе RO‘s further determination to the Board, again request a hearing, and again be subjected to unreasonable delay. The government disagrees that Mr. Ebanks can reasonably expеct to again be subject to the same action.
If the Board denies Mr. Ebanks relief, and if he appeals to the Court of Appeals for Veterans Claims, and if Mr. Ebanks prevails on that appeal, he may be entitled to a new hearing on remand to the Board. But any Board hearings on remand are subject to expedited treatment under
If the Board grants Mr. Ebanks rеlief and remands to the RO, and if Mr. Ebanks disagrees with the RO‘s entitlement or effective-date determination and again appeals to the Board, he may also be entitled to a new hearing. But as the government points out, Congress has recently overhauled the review process for RO decisions. See Veterans Appeals Improvement and Modernization Act of 2017 (“VAIMA“), Pub. L. No. 115-55, 131 Stat. 1105 (codified in scattered sections of
Given these many contingencies, Mr. Ebanks has not shown a sufficiently reasonable expectation that he will again be subjected to the same action. The possibility that Mr. Ebanks will seek a future hearing at the Board or, if he does, that a hearing will be delayed depends upon a chain of hypothesized actions—by the Board, the RO, the courts, and Mr. Ebanks himself—that on this record are too attenuated and speculative to trigger the exception to mootness. See, e.g., Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) (rejecting application of exceрtion to mootness in light of “mere physical or theoretical possibility” of recurrence); Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1088 (D.C. Cir. 2017) (quoting id.) (same given only “a ‘theoretical possibility’ that th[e] chain of events might occur“).
Even if this case were not moot, we question the appropriateness of granting individual relief to veterans who claim unreasonаble delays in VA‘s first-come-first-
Under these circumstances, the issue seems best addressed in the class-action context, where the court could consider class-wide relief. See Stephen C. Robin, Healing Medicare, 95 N.C. L. Rev. 1293, 1303 (2017) (citing Barr, 930 F.2d at 74; Air Line Pilots Ass‘n, Int‘l v. Civil Aeronautics Bd., 750 F.2d 81 (D.C. Cir. 1984)) (suggesting a preference for suits brought on behalf of a class or association, where the court can “shift[] its focus from one claimant to the whole system” and “simply address[] the unreasonable delays felt by all of the potential parties with claims under the Act in question“). We have recently approved the use of collective actions in the Court of Appeals for Veterans Claims in a case concerning delays at another stаge of the VA claims process. Monk v. Shulkin, 855 F.3d 1312, 1318-22 (Fed. Cir. 2017).
* * *
Our decision in this case should not be understood as condoning the extraordinary delays experienced by Mr. Ebanks and so many other veterans seеking the Board hearings to which they are statutorily entitled. As it stands, it appears that veterans desiring a Board hearing must endure at least a three-year delay in the processing of thеir claims. And as the government acknowledged at oral argument, the reforms recently enacted by Congress, while possibly mitigating delays for future cases, do not appear direсtly to address the present backlogs and delays at the Board level.
However, the particular dispute between these parties is now moot, and we lack jurisdiction over this аppeal, which must be dismissed. Because the mooting of this case denied Mr. Ebanks the opportunity for appellate review, the judgment of the Court of Appeals for Veterans Claims is vacated, and the case is remanded to that court with the instruction to dismiss the petition as moot. See Camreta v. Greene, 563 U.S. 692, 712-14, 712 n.10, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (citing United States v. Munsingwear, 340 U.S. 36, 39-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950)).
VACATED AND REMANDED
Costs
No costs.
Melvin A. CREDIFORD, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
2016-1386
United States Court of Appeals, Federal Circuit.
Decided: December 18, 2017