Writs Of Mandamus At the CAVC

By Robert Davis

For those unfamiliar, a writ of mandamus is an order directing a government official to perform his or her duty.  This writ is a request of last resort, but belongs in any administrative lawyer’s repertoire.  Indeed, notification of intent to seek mandamus is often enough to prompt government action.  Recent case law has resolved issues related to the writ’s usage against the Department of Veterans Affairs (VA).  This article gives some general information about writs of mandamus before exploring these recent decisions.

Judicial oversight through writs directed at the administrative branch dates back to at least 1615, when Sir Edward Coke found that the King’s bench had authority not only to correct errors in judicial proceedings but also “other errors and misdemeanors extra-judicial… to any manner of misgovernment; so that no wrong or injury, either public or private, can be done, but that it shall be (here) reformed or punished by due course of law.”[1]

Writs of mandamus have been incorporated in both federal and state law.  The All Writs Act gives the Supreme Court and all courts created by Congress the ability to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[2] In North Carolina, Rule of Appellate Procedure 22, describes usage of the writ by the Court of Appeals and the writ is available elsewhere as a form of equitable relief. [3]

A Court’s authority to issue writs of mandamus is not unlimited.  Most writ statutes do create an independent source of jurisdiction and instead provide mandamus as a means to enforce pre-existing oversight jurisdiction. [4]  Out of deference to the executive branch, writs of mandamus also tend to be limited to the performance of non-discretionary duties, situations where relief is not otherwise available, and extraordinary circumstances or the involvement of fundamental rights. [5]

Requests for mandamus against the VA are often related to allegations of unreasonable delay in the processing of claims.  Original jurisdiction for such requests lies with the Court of Appeals for Veterans Claims (“CAVC”).  In Martin v. O’Rourke,[6] the Court of Appeals for the Federal Circuit, which hears appeals from the CAVC, recently examined the standard the CAVC must use to determine whether processing delays create extraordinary circumstances.

The CAVC had been utilizing a standard described in Costanza v. West, 12 Vet. App. 133 (1999) (per curiam), which required that the delay be “so extraordinary, given the demands and resources of the Secretary, that the delay amounts to an arbitrary refusal to act, and not the product of a burdened system.”  The Federal Circuit Court of Appeals had been utilizing a test described Telecomms. Research & Action Ctr. v. FCC (“TRAC”) [7] to evaluate allegations of unreasonable delay and concluded that the CAVC should be using TRAC as well.  Under TRAC, the relevant inquiry is a six-part “rule of reason”:

  1. [T]he time agencies take to make decisions must be governed by a “rule of reason”
  2. [W]here Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
  3. [D]elays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake
  4. [T]he court should consider the effect of expediting delayed action on agency activities of a higher or competing priority
  5. [T]he court should also take into account the nature and extent of the interests prejudiced by delay
  6. [T]he court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed.

As admitted by the Federal Circuit, this test is somewhat vague. [8]

There are early indications of how the CAVC will treat the TRAC factors.  For example, the CAVC appears likely to accept that the VA’s workload and statutory obligations justify some processing delays.  The CAVC has also found that the lack of legal processing requirements weighs against mandamus. [9]  On the other side, The CAVC appears predisposed to find that human health and welfare are at stake in VA claims and create a significant interest in resolution. [10]  The sixth part of TRAC states that impropriety does not have to be involved for delays to be unreasonable and cannot be construed to support or oppose mandamus in any particular case.  Thus, five of six TRAC criteria will often be balanced.

Though not precedential, these early cases suggest that successful judicial resolution will often require winning on prong four of TRAC, which examines the effect of expediting delayed action on agency activities of a higher or competing priority.[11]  In addressing this issue, advocates will need to overcome a presumption that the VA is in the best position to determine resource allocation. [12]  Individuals may also be able to assert that extreme facts or delays are enough to tip the balance in favor of mandamus.

Monk v. Shulkin deals with an attempt to aggregate requests for mandamus related to VA delays under the All Writs Act into a class action.  The CAVC initially found that it did not have jurisdiction to certify such class actions. [13]  The Federal Circuit reversed this determination and remanded the case to for further proceedings. [14]

In a recent decision that has already been appealed to the Federal Circuit, the CAVC found that the proposed class of individuals lacked sufficient commonality to be certified.  The Court stated that both the TRAC test on mandamus and evaluation regarding alleged due process violations require individualized determinations and prevent a finding of commonality.

Even if the Petitioners in Monk don’t succeed on their appeal, mandamus will remain an effective to tool when faced with a government agency’s failure to perform a duty required by law.  As noted above, a request for mandamus can be enough to prompt government action before judicial resolution.  At the CAVC, the VA has often responded to a request for mandamus by taking the requested action, rendering the request moot but effective.  Early indications are that this practice has not been changed by the adoption of TRAC.

[1] James Bagg’s Case, 11 Coke’s Rep. 93 (1615).

[2] 28 U.S.C. § 1651.

[3] See Fleming v. Mann, 23 N.C.App. 418, 209 S.E.2d 366 (1974).

[4] See 28 U.S.C. § 1651.

[5] See, e.g., Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 391 (2004).  These criteria have been expressed in a variety of ways, but usually with the same elements.  For example, in appeals, it has been held that the petitioner must demonstrate a clear and indisputable right to the writ, that he or she lacks adequate alternative means to obtain the desired relief (and the writ is not used as a substitute for the appeals process) and that the issuance of the writ is warranted. Id.

[6] 17-1747

[7] 750 F.2d 70, 76 (D.C. Cir. 1984)

[8] Id. A 80

[9] See id

[10] See id.

[11] See id.

[12] See id.

[13] See 855 F.3d 1312 (Fed. Cir. 2017).

[14] See 855 F.3d 1312 (Fed. Cir. 2017).