ELON L. EBANKS, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 16-3212, Judge Coral Wong Pietsch.
Ryan Lippman, The Veterans Law Group, La Jolla, CA, argued
William James Grimaldi, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for 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.
Dyk, Linn, and Hughes, Circuit Judges.
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") Regional 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 38 U.S.C. § 7107. This statute
entitles a veteran appealing to the Board "an
opportunity for a hearing" before the Board may decide
the appeal. § 7107(b).
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.
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.
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 same action again.'"
King-domware Techs., Inc. v. United States, 136
S.Ct. 1969, 1976 (2016) (alterations in original) (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998)).
ordered supplemental briefing on this issue. 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
adjudication 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 the 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 expect to again be subject to the same action.
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 38 U.S.C.
Board grants Mr. Ebanks relief 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 38 U.S.C.). As relevant
here, veterans who disagree with an RO decision may now elect
to pursue one of three tracks for further review, including
higher-level review at the RO, filing a supplemental claim,
and appealing to the Board. See id. sec. 2(h)(1),
§ 5104C(a)(1), 131 Stat. at 1108. Appeals to the Board
will now be divided into at least two dockets, separating out
those claims in which the veteran has requested a hearing.
See id. sec. 2(t), § 7107(a), 131 Stat. at
1112-13. Any future appeal to the Board by Mr. Ebanks may
well be subjected to this new regime. See id. sec.
2(x)(1), 131 Stat. at 1115 (setting an effective date at the
later of February 14, 2019, and 30 days after VA's
certification of readiness to carry out VAIMA); id.
sec. 2(x)(5), 131 Stat. at 1115 (providing veterans the
option of pursuing legacy claims under new system). And at
this point Mr. Ebanks has not established that future Board
proceedings will be subject to the same delays as is
presently the case.
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 (1982)
(per curiam) (rejecting application of exception 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").
this case were not moot, we question the appropriateness of
granting individual relief to veterans who claim unreasonable
delays in VA's first-come-first-served queue. Granting a
mandamus petition in such circumstances may result in no more
than line-jumping without resolving the underlying problem of
overall delay. See, e.g., In re Barr Labs.,
Inc., 930 F.2d 72, 75 (D.C. Cir. 1991) (rejecting
mandamus petition to advance an FDA application because