United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ELON L. EBANKS,
`Claimant-Appellant
`
`v.
`
`DAVID J. SHULKIN, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2017-1277
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 16-3212, Judge Coral Wong
`Pietsch.
`
`______________________
`
`Decided: December 14, 2017
`______________________
`
` MARK RYAN LIPPMAN, The Veterans Law Group, La
`Jolla, CA, argued for claimant-appellant.
`
` 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.
`
`
`for the Federal Circuit
`______________________
`
`ELON L. EBANKS,
`Claimant-Appellant
`
`v.
`
`DAVID J. SHULKIN, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2017-1277
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 16-3212, Judge Coral Wong
`Pietsch.
`
`______________________
`
`Decided: December 14, 2017
`______________________
`
` MARK RYAN LIPPMAN, The Veterans Law Group, La
`Jolla, CA, argued for claimant-appellant.
`
` 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.
`
`
`
`
`
` 2
`
` EBANKS v. SHULKIN
`
`______________________
`
`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 Veter-
`ans 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 simultaneous-
`ly 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).
`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 seek-
`ing 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
`
`
`
`EBANKS v. SHULKIN
`
`3
`
`within the exception to mootness for cases that are capa-
`ble of repetition yet evading review. That doctrine “ap-
`plies ‘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)).
`We 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.
`If the Board denies Mr. Ebanks relief, and if he ap-
`peals 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. § 7112.
`If the Board grants Mr. Ebanks relief and remands to
`the RO, and if Mr. Ebanks disagrees with the RO’s enti-
`tlement 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
`
`
`
`
`
` 4
`
` EBANKS v. SHULKIN
`
`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 supple-
`mental 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.
`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 excep-
`tion 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 possi-
`bility’ that th[e] chain of events might occur”).
`
`
`
`EBANKS v. SHULKIN
`
`5
`
`Even if this case were not moot, we question the ap-
`propriateness 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 “a judicial order putting [petitioner]
`at the head of the queue simply moves all others back one
`space and produces no net gain”).
`Under these circumstances, the issue seems best ad-
`dressed 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 Aero-
`nautics Bd., 750 F.2d 81 (D.C. Cir. 1984)) (suggesting a
`preference for suits brought on behalf of a class or associ-
`ation, 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 stage 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 seeking 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 their claims. And as the government acknowledged at
`oral argument, the reforms recently enacted by Congress,
`
`
`
`
`
` 6
`
` EBANKS v. SHULKIN
`
`while possibly mitigating delays for future cases, do not
`appear directly 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 appeal,
`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 (2011)
`(citing United States v. Munsingwear, 340 U.S. 36, 39-41
`(1950)).
`
`VACATED AND REMANDED
`COSTS
`
`No costs.
`
`
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