UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 23-2589

CHRISTOPHER C. HAMBIDGE, PETITIONER,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before TOTH, FALVEY, and JAQUITH, Judges.

O R D E R

TOTH, Judge, filed the opinion of the Court. FALVEY, Judge, filed a concurring opinion. 

JAQUITH, Judge, filed a dissenting opinion.

Christopher C. Hambidge has petitioned this Court for extraordinary relief in the form of 

an order enjoining the Secretary from applying 38 C.F.R. § 21.4020 to limit his continued 

entitlement to Post-9/11 GI Bill education benefits under 38 U.S.C. § 3301 et seq. (chapter 33 

education benefits) while his administrative appeal proceeds. He asserted that the regulation is 

flatly inconsistent with 38 U.S.C. § 3695(c) and that he would suffer irreparable harm if his 

entitlement was not properly resolved before the beginning of the fall 2023 semester. For this Court 

to grant extraordinary relief in any form, the petitioner must show that there is no adequate 

alternative form of relief. Because Mr. Hambidge can appeal any future adverse Agency decision 

affecting his continued entitlement to chapter 33 education benefits to this Court, he has an 

adequate alternative means of relief. Moreover, the writ was sought on the basis of irreparable 

harm, the threat of which has been removed by action that correctly calculated Mr. Hambidge's

eligibility for continued chapter 33 education benefits and did so before the fall 2023 semester 

began. Accordingly, extraordinary relief in the form of an injunction is not warranted.

I. BACKGROUND

There are no disputed facts in this case. See Secretary's June 26, 2023, Response at 1 

(accepting the petitioner's facts and supporting exhibits "as true"). In 2011, Mr. Hambidge 

graduated with an undergraduate degree in business administration from The Citadel, the Military 

College of South Carolina. To pay for his education, he used Survivors' and Dependents'

Educational Assistance under 38 U.S.C. § 3500 et seq. (chapter 35 benefits), to which he was 

entitled because of his father's military service. After graduating from The Citadel, Mr. Hambidge

served as an officer in the Army for just over a decade, which included deployments to Afghanistan 

in support of Operation Enduring Freedom. Before being discharged from the Army, he was 

accepted into a Master of Business Administration (MBA) program at the University of North 

Carolina at Chapel Hill (UNC); he enrolled in the program in January 2023. He is currently 

attending the MBA program full-time and plans to graduate in December 2024.
2

Before enrolling in his MBA program, Mr. Hambidge filed a claim for chapter 33 education 

benefits based on his years of qualifying Army service. In September 2022, VA issued a certificate 

of eligibility (COE), notifying the petitioner that he is "entitled to 100% of the benefits payable 

under the Post-9/11 GI Bill program (chapter 33) for training offered by an institution of higher 

education." Petition, Exhibit A. But it also informed him that he could only receive seven months 

and five days of those benefits. Mr. Hambidge requested an audit detailing his usage of chapter 35 

benefits and clarifying how the receipt of chapter 35 benefits affected his future receipt of chapter

33 benefits. The regional office (RO) responded two days later:

[P]er [38 C.F.R. § 21.4020], the aggregate period for which any person may receive 

education benefits assistance under any combination of VA education programs 

may not exceed 48 months. Because you previously used 40 months and 25 days 

of benefits under Chapter 35, you may only be granted a maximum of 7 months 

and 5 days under the Post-9/11 GI Bill (Chapter 33).

Petition, Exhibit B. Mr. Hambidge then filed a direct Board appeal as to the September 2022 COE. 

He also requested advancement on the Board's docket, noting that the VA-published wait times 

for a Board decision likely meant that, before the Board could issue a decision, his chapter 33

education benefits would run out while he was in the middle of the fall 2023 semester. In February, 

the Board notified Mr. Hambidge that it received his appeal but that it would not docket the appeal 

until the RO supplied it with certain records necessary to evaluate whether to accept the appeal.

In May 2023, four relevant events occurred. On May 1, while his Board appeal remained 

pending, Mr. Hambidge sought extraordinary relief from this Court. Specifically, he requested that 

we enjoin the Secretary from applying § 21.4020 to limit his entitlement to chapter 33 education 

benefits during the pendency of his appeal, arguing that the regulation is flatly inconsistent with

section 3695(c). He reasoned that an injunction would preserve this Court's jurisdiction by

preventing irreparable harm—namely, the exhaustion of his chapter 33 education benefits in 

September 2023, in the middle of his MBA program but long before a Board decision was 

expected. On May 8, the Court ordered the Secretary to respond to Mr. Hambidge's petition. On 

May 16, the Board notified Mr. Hambidge that it received his motion to advance his case on the 

docket but was still waiting for the RO to provide relevant records. And on May 17, the RO issued 

a new COE, notifying Mr. Hambidge that he was "entitled to receive 100% of the benefits payable 

under the Post-9/11 GI Bill program for training offered by an institution of higher education" and 

therefore had 33 months and 15 days of full-time chapter 33 education benefits remaining.

Secretary's June 26, 2023, Response, Exhibit D.

The Secretary argues that, because the RO concluded in the new COE that the petitioner is 

entitled to use the full allotment of chapter 33 education benefits, the requested relief has been 

provided and the petition is therefore moot. In response, Mr. Hambidge raises various arguments

as to why his case is not moot.
3

II. ANALYSIS

Under the All Writs Act, 28 U.S.C. § 1651, this Court has the authority to issue 

extraordinary writs in aid of its jurisdiction. Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017). 

Extraordinary relief, however, is just as it sounds, a "drastic" remedy that should only be invoked

in extraordinary circumstances. Id.; see also Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 

2002) ("'Mandamus, prohibition and injunction against judges are drastic and extraordinary 

remedies. . . . As extraordinary remedies, they are reserved for really extraordinary causes.'"

(ellipsis in original) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). Here, the form of 

extraordinary relief that the petitioner seeks is an injunction, a remedy we have recognized is 

available under our All Writs Act authority. See Moore v. Derwinski, 1 Vet.App. 83, 84 (1990); 

see also Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) ("confirm[ing] 

the authority of appellate courts to entertain requests for injunctive relief under the All Writs Act").

Nevertheless, he would accept relief in the form of a writ of mandamus if the Court were to find 

such relief appropriate. See Petition at 9 n.1.

Because the petitioner requests either mandamus or injunctive relief, the Court sets out the 

distinct frameworks established for each. "A writ of mandamus may issue only when three 

conditions are satisfied," namely, (1) the petitioner shows a "'clear and indisputable' right to 

issuance of the writ under the relevant substantive law," (2) the petitioner has "'no other adequate 

means' to attain the desired relief, and (3) 'even if the first two prerequisites have been met, the 

issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under 

the circumstances.'" Wolfe v. McDonough, 28 F.4th 1348, 1354 (Fed. Cir. 2022) (quoting Cheney

v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004)). To warrant injunctive relief, a party must 

demonstrate four conditions—"(1) that it will be immediately and irreparably injured; (2) that there 

is a likelihood of success on the merits; (3) that the public interest would be better served by the 

relief requested; and (4) that the balance of hardship on all the parties favors the petitioner."

Zenith Radio Corp., 710 F.2d at 809; accord Rudisill v. McDonough, 34 Vet.App. 176, 184 n.28 

(2021), rev'd 55 F.4th 879 (Fed. Cir. 2022) (en banc), cert. granted 143 S. Ct. 2656 (June 26, 

2023).

Yet, despite the distinctiveness of the two frameworks, they contain analogous inquiries. 

For example, the "clear and indisputable right" inquiry in the mandamus context and the 

"likelihood of success of the merits" inquiry in the injunction context both focus on whether the 

petitioner has demonstrated that the law supports his position, even if the former standard is more 

demanding than the latter. Similarly, an allegation of irreparable harm when seeking an injunction 

is tantamount to asserting that there is no adequate alternative means to obtain the desired relief, 

inasmuch as the threat of only remediable injuries precludes both injunctive and mandamus 

intervention. See Lamb, 284 F.3d at 1384.

In a recent case where a petitioner sought under the All Writs Act a stay of administrative 

action pending appeal, we concluded that the proper standard for relief synthesized both the 

traditional mandamus factors and the traditional stay factors. Purpose Built Fams. Found., Inc. v. 

McDonough, 36 Vet.App. 345, 357 (2023). Since the factors governing an injunction are 

substantially similar to the factors governing a stay, see id. at 353 n.43, we conclude a comparable 

approach is appropriate here.
4

Thus, to justify an injunction, Mr. Hambidge must show: (1) a lack of adequate alternative 

means to obtain the desired relief; (2) a likelihood of success on the merits of his appeal (this is 

akin to the "clear and indisputable right" inquiry but less demanding); (3) irreparable harm in the 

absence of such relief; (4) the public interest would be better served by an injunction; and (5) the 

balance of hardship on the petitioner and VA favors the petitioner. In this case, although there is 

no dispute that the merits of Mr. Hambidge's administrative appeal are strong, he has not shown 

that he lacks adequate alternative means to obtain the relief he seeks or that he will suffer 

irreparable harm unless an injunction issues. Based on these and the other factors, the Court 

concludes that neither mandamus nor injunctive relief is warranted.

We begin briefly with the statutory and regulatory landscape relevant to the petition. 

Specifically, Mr. Hambidge asks that the Court enjoin the Secretary from applying § 21.4020 to 

his claim for chapter 33 education benefits and to invalidate § 21.4020 so that it cannot be used

against any veteran seeking a full allotment of such benefits. The basis of his request is that 

§ 21.4020 unlawfully caps a veteran's usage of chapter 33 education benefits to 48 months, which 

contradicts the more generous 81-month cap imposed by the statute. 

Before 2012, "[t]he aggregate period for which any person [could] receive assistance under 

two or more of the provisions of law listed below"—as relevant here, "Chapters 30, 32, 33, 34, 35, 

and 36" of title 38 of the U.S. Code—could "not exceed 48 months." 38 U.S.C. § 3695(a)(4)

(2012). In 2012, Congress amended section 3695; it removed subsection (a)(4)'s reference to 

chapter 35 and added subsection (c), which provided an 81-month aggregate cap for use of chapter 

35 benefits in combination with other VA education programs. Honoring America's Veterans and 

Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, Title IV, § 401(a), 126 Stat.

1165, 1188. VA has not updated § 21.4020 to reflect this decade-old statutory alteration; it still 

provides that the "aggregate period for which any person may receive assistance" under "chapters 

30, 32, 33, 34, 35, and 36" cannot "exceed 48 months." 38 C.F.R. § 21.4020(a)(1)(4) (2023).

There is no dispute that VA's regulation is inconsistent with section 3695; the Secretary all 

but concedes as much in his response. See Secretary's June 26, 2023, Response at 8 ("while the 

RO erroneously withheld benefits originally"), ("the Veteran's Benefits Manual M22-4 instructs 

ROs to adjudicate education benefits based on the statutory entitlements, to include the 81-month 

limit for receiving assistance under Chapter 35 and other Chapters"), at 9 ("Indeed, the RO has 

corrected the error."), at 10 ("internal VA guidance is to administer educational benefits based on 

the statute, to include the 81-month limit for receiving assistance under Chapter 35 and other 

Chapters"). And the Secretary's actions in this case, namely having the RO issue a revised COE 

and granting Mr. Hambidge full entitlement to chapter 33 benefits by ignoring the regulation's 48-

month cap, speak even louder. Like Mr. Hambidge, the Court is baffled by the Secretary's failure 

to revise § 21.4020 to reflect the changes that Congress made to section 3695 a dozen years ago. 

The veteran has a strong likelihood of succeeding in his appeal (at the judicial, even if not at the 

administrative, level).

But this does not automatically entitle the veteran to a writ enjoining the Secretary from 

applying his regulation. The first reason is that Mr. Hambidge has adequate alternative means to 

obtain relief through the appeals process should VA attempt to enforce § 21.4020 against him. 
5

Extraordinary relief "is unavailable when there is an adequate remedy by appeal." Wolfe, 

28 F.4th at 1357. Traditionally, the writ in aid of jurisdiction was used to confine an inferior 

tribunal "to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority."

Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382 (1953). In this Court, the writ process 

is often used to "'compel action of the Secretary unlawfully withheld or unreasonably delayed.'"

Monk, 855 F.3d at 1319 (quoting 38 U.S.C. § 7261(a)(2)). A writ, however, cannot be used to 

control decisions of a lower tribunal or an agency. Bankers, 346 U.S. at 383. Therefore, at 

minimum, a writ "cannot dictate a particular outcome" when it is clear such an outcome can be 

attained through an administrative appeal. Wolfe, 28 F.4th at 1358. This prohibition on using

extraordinary writs as substitutes for appeals obtains "even though hardship may result from delay 

and perhaps unnecessary trial," for "whatever may be done without the writ may not be done with 

it." Bankers, 346 U.S. at 383.

In Wolfe, for example, the Federal Circuit cited the petitioner's ability to appeal her case to 

this Court as decisive in determining that adequate alternate relief was available. Indeed, at the 

time Ms. Wolfe filed her petition, she was pursuing an administrative appeal. The Federal Circuit 

found it significant that she never alleged that the administrative appeal was inadequate or that the 

Secretary had refused to proceed with or unreasonably delayed the appeal. Wolfe, 28 F.4th at 1357–

58.

The same is true here. Mr. Hambidge does not allege that his administrative appeal is being 

unreasonably delayed or that VA is refusing to proceed with it. Nor does he assert that there is any 

impediment to this Court's review of a Board decision adverse to him. Absent such impediments, 

the normal appeal process serves as an adequate alternative means to obtain the relief the petitioner

seeks: removal of the 48-month aggregate cap imposed by § 21.4020 on his chapter 33 education 

benefits. Indeed, the veteran confirms that he continues to pursue his appeal to the Board. 

December 21, 2023, Joint Response at 2.

Mr. Hambidge responds that he is not worried about the typical sort of hardship that might 

result while the appellate process unfolds. Rather, he contends, he is threatened with irreparable 

harm. The Court accepts for the sake of this case that "[s]ubstantial disruption to an educational 

program, particularly one already in progress, can constitute irreparable harm." Petition at 15–16; 

cf. Rudisill, 34 Vet.App. at 185. But the threat of such disruption no longer exists for the veteran.

When Mr. Hambidge filed this petition, he was pursuing an appeal to the Board from the 

September 2022 COE. Under that determination, he was not entitled to sufficient chapter 33 

education benefits to complete his MBA program. Since then, however, he received a new COE 

concluding that he may receive the full 36 months of chapter 33 education benefits to which he is 

entitled under the Post-9/11 GI Bill, thereby allowing him to complete his MBA program. As the 

veteran concedes, the new COE determined and restored his entitlement to all the chapter 33 

education benefits to which he believes he's entitled. Petitioner's August 28, 2023, Response at 5.

Mr. Hambidge nonetheless argues that the threat of irreparable harm persists because, 

without an injunction, the "[t]he chance of reapplication of the regulation is likely." Id. at 4. The 

Court is not persuaded, however. True, both the veteran and UNC are required to submit to VA 

regular reports and certifications on his proper usage of chapter 33 education benefits. See, e.g., 
6

38 C.F.R. §§ 21.4203 (2023), 21.4204 (2023), 21.9720 (2023), 21.9735 (2023). But there is no 

reason to think that this periodic reporting would trigger a redetermination by VA of the full extent 

of chapter 33 education benefits the veteran is entitled to claim. In other words, there is no 

likelihood that the Secretary will have occasion, following these proceedings, to apply § 21.4020's 

48-month cap to him.

In sum, Mr. Hambidge has an adequate alternative remedy for the relief he seeks and is no 

longer threatened with irreparable harm. Accordingly, even if the other relevant factors were 

neutral or favorable to the veteran, the Court is not persuaded that the extraordinary remedy of an 

injunction pending resolution of his administrative appeal is appropriate. 

A final word. The Court is troubled by VA's inaction on this issue. Most troubling has been

its ongoing failure for more than a decade to revise § 21.4020 to reflect the changes to section 

3695. As it stands, the regulation is flatly inconsistent with the statute. Remarkably, even as this 

petition brought that inconsistency front and center, there has been no formal notice by the Agency 

of its intention to amend § 21.4020 or even an informal representation to the Court that such efforts 

were underway. Mr. Hambidge's case demonstrates the dangers of VA's inaction on this legal

issue. Nonfeasance is not too harsh a word to use in this context. The fact that Mr. Hambidge can

challenge the regulation via his administrative appeal and will not suffer irreparable harm while 

he pursues that remedy suffice to make injunctive relief inappropriate here. But the Court strongly 

urges the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not 

wrongly penalized by § 21.4020. 

III. CONCLUSION

Upon consideration of the foregoing, it is

ORDERED that the May 1, 2023, petition for extraordinary relief is DENIED.

DATED: March 13, 2024 PER CURIAM.

FALVEY, Judge, concurring: I fully agree with the majority opinion. I write separately to 

highlight a legal point that may get lost as claimants try to navigate their disputes with VA through 

our narrow jurisdictional straits. Under section 7252, our jurisdiction is limited to review of Board 

decisions; our authority to issue writs under the AWA is confined to those "necessary or 

appropriate in aid of [our] jurisdiction . . . ." 28 U.S.C. § 1651(a). And the majority ably explains 

exactly why a writ is not necessary or appropriate here.

Mr. Hambidge has fundamentally failed to show that a writ would be in aid of our 

jurisdiction. Our recent cases have stressed this requirement. See Purpose Built Fams. Found., Inc.

v. McDonough, 36 Vet.App. 345, 353-54 (2023) (explaining that, "as a threshold matter, petitioner 

must show that a writ is warranted under the AWA because it is in aid of the Court's prospective 

jurisdiction"); Love v. McDonough, 35 Vet.App. 336, 341-42 (2022). Yet Mr. Hambidge has not 

shown how our prospective jurisdiction would be jeopardized by him going through the regular 

appellate process. Thus, I would deny the petition because, along with the reasons explained by 

the majority, Mr. Hambidge has simply failed to show that a writ is in aid of our prospective 
7

jurisdiction. See Clinton v. Goldsmith, 526 U.S. 529, 540 (1999) (reversing a fellow Article I 

court's grant of injunctive relief under the AWA because it "was neither 'in aid of [its] jurisdictio[n]'

nor 'necessary or appropriate'") (alterations in original).

JAQUITH, Judge, dissenting: In my view, a preliminary injunction is warranted because the 

petitioner has shown (1) an extremely strong likelihood of success on the merits, (2) a viable threat 

of irreparable harm that both renders his alternative path to relief inadequate and would defeat our 

prospective appellate jurisdiction, (3) that the balance of equities overwhelmingly tilts his way, 

and (4) that an injunction is in the public interest; therefore, I respectfully dissent.

A. Jurisdiction

As an initial matter, the Secretary asserts, as he often does, that the Court has no jurisdiction 

to address this petition. The Secretary says we have no jurisdiction here because the matter is moot 

and because the All Writs Act does not expand this Court’s statutory jurisdiction to permit issuance

of writs in aid of the Court’s appellate jurisdiction. Secretary's Response at 5, n. 4. 

Taking the Secretary's second assertion first, it is well settled that the AWA empowers the 

Court to issue writs in aid of its prospective jurisdiction "in the face of action . . . that would 

frustrate such prospective appellate jurisdiction." Purpose Built Families Found., Inc. v. 

McDonough, 36 Vet.App. 345, 354 (2023) (quoting Margolis v. Banner, 599 F.2d 435, 440-41 

(C.C.P.A. 1979)) (alteration in original); see, e.g., May v. McDonough, 61 F.4th 963, 966 (Fed. 

Cir. 2023) (recognizing the power of the "Veterans Court . . . under the All Writs Act . . . , to issue 

a writ to 'protect its future jurisdiction'") (quoting Martin v. O'Rourke, 891 F.3d 1338, 1343 (Fed. 

Cir. 2018)); Shorette v. McDonough, 36 Vet.App. 297, 307–08 (2023). Extraordinary relief "does 

not aid prospective jurisdiction where a party has not initiated any proceeding whatsoever." Wolfe 

v. McDonough, 28 F.4th 1348, 1359 (Fed. Cir. 2022). But this is not such a case. The petitioner 

has an active appeal before the Board of Veterans' Appeals. See Petition Exhibits (Pet. Ex.) C, D, 

and E. VA obviously makes decisions on education benefits under laws that affect the provision 

of benefits within the meaning of 38 U.S.C. § 511(a). The petitioner asserts that denying 

educational benefits will force him "to pause or terminate his enrollment in his current graduate 

program, causing irreparable harm to his career and career prospects." Pet. at 3; Pet. Ex. G. He 

adds that without education benefits he would "be forced to take out significant student loans or 

access retirement savings in an attempt to remain on course to timely obtain [his] MBA," and that 

he would thereby "incur unnecessary fees, interest, penalties, and/or other impacts" that he could 

not be compensated for by subsequent restoration of his chapter 33 benefits at some indeterminate 

date. Pet. Exh. G. These alleged harms are unrebutted by the Secretary, see Secretary's Resp. at 1, 

accepted by the Court as true,

1

ante at 5, and would defeat the jurisdiction of the Court by 

1

"The Court accepts for the sake of this case that '[s]ubstantial disruption to an educational program, particularly one 

already in progress, can constitute irreparable harm.'" Ante at 5 (quoting Petition at 15–16). See Rudisil, 34 Vet.App. 

at 185 ("The harms that appellant alleges regarding timing and structuring of his life go beyond the dollar amount of 

the benefits."). Though they emphasize that the petitioner has an adequate alternative means of relief—his 

administrative appeal—neither the Secretary nor the Court describes how an appellate victory could repair the harms 

the petitioner identified. As the petitioner argues, there is no "express mechanism in the Post-9/11 GI Bill by which 

the Secretary can compensate [him] for lost education assistance benefits." Pet. at 3; Pet. Exh. G. For Post-9/11 GI 

Bill education benefits, 38 C.F.R. § 21.9770(b) (2023) references 38 C.F.R. § 21.7302, which provides that "[t]he 

decision of a VA facility of original jurisdiction on which an action is based—(3) Will not be subject to revision on 
8

foreclosing it from affording any meaningful relief on appeal. See F.T.C. v. Dean Foods Co., 384 

U.S. 597, 604 (1966) ("[D]ecisions of [the Supreme] Court 'have recognized a limited judicial 

power to preserve the court's jurisdiction or maintain the status quo by injunction pending review 

of an agency's action through the prescribed statutory channels.'") (quoting Arrow Transp. Co. v. 

S. Ry. Co., 372 U.S. 658, 671 n.22 (1963)). Therefore, Mr. Hambidge has shown that a writ is in 

aid of our jurisdiction and that, under the circumstances, his appeal does not afford an adequate 

alternate means of relief.

The mootness question is intertwined with the standards for injunctive relief, to which I 

now turn.

B. Meeting the Standard for Injunctive Relief

The majority initially passes over the factors the Court considers to determine whether we 

should grant an injunction, as spelled out in Rudisill: "(1) whether appellant is likely to succeed on 

the merits; (2) whether appellant is likely to suffer irreparable harm in the absence of injunctive 

relief; (3) whether the balance of equities tip in his favor; and (4) whether the injunction is in the 

public interest." Rudisill v. McDonough, 34 Vet.App. 176, 184 (2021). Rudisill echoes the 

Supreme Court's injunction standard. See Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 

20 (2008) ("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 

the balance of equities tips in his favor, and that an injunction is in the public interest."). Relying 

on Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983), the majority prefers 

an immediate irreparable harm element, jumpstarting its journey to inaction. Ante at 3. However, 

Zenith Radio goes on to restate the irreparable harm factor as requiring "'a viable threat of serious 

harm that cannot be undone.'" Zenith Radio Corp., 710 F.2d at 809 (quoting S.J. Stile Assoc. Ltd. 

v. Snyder, 646 F.2d 522, 525 (Cust. & Pat. App. 1981)). Since Zenith Radio Corp., the Court of 

Appeals for the Federal Circuit has focused on "'the threat of irreparable harm to the movant should 

a preliminary injunction be denied'" for over 35 years. See Nutrition 21 v. United States, 930 F.2d 

867, 869 (Fed. Cir. 1991) (quoting Pretty Punch Shoppettes v. Hauk, 844 F.2d 782, 783 (Fed. Cir.

1988)). And the Federal Circuit now embraces Winter's formulation of the factor as whether the 

petitioner is "'likely to suffer irreparable harm in the absence of preliminary relief.'" ABC Corp. I 

v. P'ship & Unincorp. Assoc'ns Identified on Sched. "A", 52 F.4th 934, 941 (Fed. Cir. 2022)

(quoting Winter, 555 U.S. at 20). 

the same factual grounds except by duly constituted appellate authorities or except as provided in § 21.7303 of this 

part." 38 C.F.R. § 21.7302(a)(3) (2023). Unfortunately, the appellate process elongates the disruption to an educational 

program and if the veteran wins the Court can neither turn back the clock nor award "interest or damages stemming 

from a previous wrongful denial of benefits." In re Proposed Amend. to R. 26(b), 12 Vet.App. 432, 433 (1998) (per 

curiam order); see Sandstrom v. Principi, 358 F.3d 1376 (Fed. Cir. 2004); Ribaudo v. Nicholson, 21 Vet.App. 137, 

152 (2007) (Schoelen, J. concurring in part and dissenting in part) ("[D]elaying the payment of benefits would not 

render . . . claimants whole monetarily because the failure to provide benefits immediately would have substantial 

repercussions."). For example, in Pratt v. McDonough, No. 23-3098, 2023 WL 4863286, at *1 (Vet. App. July 31, 

2023) (mem. dec.), a VA regional office "informed the petitioner that VA was 'unable to reimburse the interest paid 

on [his] school loans as these fees [were] not required by the schools [he] attended.'"
9

Moreover, in deciding whether to issue a preliminary injunction, "[a]lthough 'no single 

factor is dispositive,' the "probability of success [] is the most significant." Sleep No. Corp. v. 

Young, 33 F.4th 1012, 1016 (8th Cir. 2022) (quoting Turtle Island Foods, SPC v. Thompson, 992 

F.3d 694, 699 (8th Cir. 2021)).2 Last year, this Court noted that "after the Supreme Court's decision 

in Winter, the circuit courts have been split on whether the factors for injunctive relief employ a 

'sliding scale' balancing test," under which "a preliminary injunction may be warranted when a 

stronger showing of one factor offsets a weaker showing of another." Purpose Built Families 

Found., Inc. v. McDonough, 36 Vet.App. 345, 357 n. 70 (2023). Our Court declared that "[w]e 

need not weigh in on whether a sliding scale approach is applicable to the Court's [U.S. Vet. App. 

R.] 8 analysis," because "petitioner ha[d] entirely failed to show a likelihood of success on the 

merits." Id. The same month as our Purpose Built Families decision, the Fifth Circuit reaffirmed 

that "[f]or preliminary injunctions, 'none of the . . . prerequisites has a fixed quantitative value. 

Rather, a sliding scale is utilized, which takes into account the intensity of each in a given 

calculus.'" Mock v. Garland, 75 F.4th 563, 587 (5th Cir. 2023) (quoting Texas v. Seatrain Int'l, 

S.A., 518 F.2d 175, 180 (5th Cir. 1975)). 

In my view, any tension between the approaches of the circuit courts is more apparent than 

real. Mock recognized that the preliminary injunction factors—likelihood of success on the merits, 

irreparable harm, and the balance of equities and the public interest favoring injunctive relief—are 

prerequisites. 75 F.4th at 586-87. Though the Ninth Circuit "use[s] a 'sliding scale' approach to 

[Winter's preliminary injunction] factors, according to which 'stronger showing of one element 

may offset a weaker showing of another,'" it highlights up front that "[a]ll four elements must be 

satisfied." hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188 (9th Cir. 2022) (quoting Alliance 

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). And balancing the equities 

is an express Winter factor. See Winter, 555 U.S. at 20. "Supreme Court precedent, every regional 

circuit, and controlling Federal Circuit precedent, apply to the preliminary injunction the 

combination of criteria that includes likelihood of success on the merits and equitable 

considerations." Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341, 1364 (Fed. Cir. 2008). As 

Justice Ginsburg observed in her dissent in Winter:

[C]ourts do not insist that litigants uniformly show a particular, predetermined 

quantum of probable success or injury before awarding equitable relief. Instead, 

courts have evaluated claims for equitable relief on a "sliding scale," sometimes 

awarding relief based on a lower likelihood of harm when the likelihood of success 

2 See also, e.g., A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 771 (7th Cir. 2023) ("The first, and 

normally the most important, criterion is likelihood of success on the merits."); Speech First, Inc. v. Cartwright, 32 

F.4th 1110, 1127–28 (11th Cir. 2022) (observing that likelihood of success on the merits is "the most important 

preliminary-injunction criterion"); California by & through Becerra v. Azar, 950 F.3d 1067, 1083 (9th Cir. 2020) (en 

banc) ("The first factor—likelihood of success on the merits—'is the most important' factor.") (quoting Garcia v. 

Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) ("We begin 

with the first and most important factor: whether petitioners have established a likelihood of success on the merits."); 

Dellew Corp. v. United States, 108 Fed. Cl. 357, 369 (2012) ("Success on the merits previously has been held to be 

the most important factor for a court to consider when deciding whether to issue injunctive relief. See Blue & Gold 

Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed.Cir.2007)."). See generally Nken v. Holder, 556 U.S. 418, 434 

(2009) (declaring, in the context of considering the issuance of a stay, that "the most critical" factors are the likelihood 

of success on the merits and irreparable harm absent a stay).
10

is very high. This Court has never rejected that formulation, and I do not believe it 

does so today.

555 U.S. at 51 (Ginsburg, J., dissenting)(citation omitted). In this case, injunctive relief is 

warranted because the likelihood of success is extremely high, the threat of harm remains real, that 

harm is irreparable, and the balance of equities and the public interest both favor maintaining the 

status quo. See Aamer, 742 F.3d at 1043 ("The primary 'purpose of a preliminary injunction is to 

preserve the object of the controversy in its then existing condition—to preserve the status quo.'"

(quoting Doeskin Products, Inc. v. United Paper Co., 195 F.2d 356, 358 (7th Cir.1952)); Ribaudo, 

21 Vet.App. at 141 ("[T]he party seeking to maintain the status quo through a stay need only raise 

questions on the merits that are 'so serious, substantial, difficult and doubtful, as to make them a 

fair ground for litigation and thus for more deliberate investigation.'" (quoting Hamilton Watch 

Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir.1953)); Purpose Built Families, 36 Vet.App. 

at 362 (same).

Whether the Court requires immediate irreparable harm or a viable threat of irreparable 

harm is pivotal here. It is clear that the petitioner is not suffering irreparable harm at this moment, 

because the RO issued a new certificate of eligibility that authorized VA payment of education 

benefits to apply to the current costs. On that basis, the majority declares that there is "no likelihood 

that the Secretary will . . . have occasion, following these proceedings, to apply § 21.4020's 48-

month cap to him." But that declaration is grounded in optimism, not evidence. The evidence 

points in a different direction.

As the Court notes, VA's nonfeasance has persisted for more than a decade. Since its 

enactment in August 2012, effective October 1, 2013, as part of the Honoring America’s Veterans 

and Caring for Camp Lejeune Families Act of 2012,

3

section 3695(c) has provided that veterans 

like the petitioner are entitled to education benefits under chapter 35 and chapter 33 for an 

aggregate period of 81 months. But VA has "honored" veterans by not implementing section 

3695(c), including not changing § 21.4020's 48-month cap, notwithstanding the obvious conflict 

between imposing a 48-month cap when entitlement to up to 81 months of education benefits is 

the law.

The veteran points out that he is not the only one whose education benefits have been cut 

off in reliance on § 21.4020 since section 3695(c) required otherwise, citing cases in 2016 and 

2022. Pet. at 2 (citing Bd. Vet. App. 1646321, 2016 WL 8190695 at *2, *6 (Dec. 9, 2016), and 

Bd. Vet. App. 22067681, 2022 WL 18541698 at *1, *4 (Dec. 8, 2022)). Both cases required Board 

action but neither case spurred effective change. So it was that in September 2022, a VA regional 

office (RO) acknowledged that the petitioner was entitled to chapter 33 benefits but erroneously 

stated that his entitlement was only for 7 months and 5 days. Pet. Ex. A. The RO gave no reason 

for its determination, only a citation to the regulation, 38 C.F.R. § 21. 9550, that provides that "an 

eligible individual is entitled to a maximum of 36 months of educational assistance . . . under 38 

U.S.C. chapter 33."

3 Pub. L. No. 112-154, § 401, 126 Stat. 1165, 1188 (2012).
11

In October 2022, the petitioner requested an audit, including an explanation of VA's 

authority to limit the benefits he earned by his active service based on the benefits he received 

because of his father's service. Pet. Ex. B. VA promptly responded, specifying that § 21.4020 

limited the aggregate period for the petitioner to receive educational benefits to 48 months, so he 

could only be granted a maximum of 7 months and 5 days of chapter 33 benefits. Id. 

In the face of VA's intransigence, the Court finds and the Secretary seems to acknowledge

that Mr. Hambidge is virtually certain to succeed on the merits because § 21.4020 is plainly 

inconsistent with section 3695(c), and "[i]t is axiomatic that a regulation may not trump the plain 

language of a statute." Swain v. McDonald, 27 Vet.App. 219, 224 (2015). When a statute and a 

regulation conflict, the statute controls as a matter of law. See Dolbin v. McDonough, 34 Vet.App. 

334, 337 (2021) (order), dismissed as moot, No. 2021-2373, 2023 WL 2981495 (Fed. Cir. 2022); 

Carr v. McDonough, 33 Vet.App. 285, 290 (2021) (holding that a regulation is invalid to the extent 

that it bars educational assistance benefits to which a veteran is entitled by statute). 

The veteran timely appealed to the Board and submitted a detailed memorandum in support 

of his appeal, describing what the RO had done and arguing that section 3695(c) required the Board 

to grant him the full 36 months of benefits to which he was entitled (not merely 7 months and 5 

days). Pet. Ex. C. In February 2023, the veteran submitted a motion to advance his case on the 

docket, describing his urgent need for his full entitlement to education benefits and the irreparable 

harm he would suffer if those benefits were denied. Pet. Ex. D. The Board acknowledged receipt 

of his appeal but replied that the Board needed to request records from the RO and review them to 

determine whether the Board could accept his appeal. Pet. Ex. E. On May 16, 2023, the Board 

acknowledged receipt of the veteran's February 2023 motion, repeated that the Board had 

requested records from the RO so the Board could determine whether to accept the appeal, and 

advised that the Board would decide the veteran's motion to advance his case on the docket when 

it decided whether to accept his appeal. Secretary's Resp. Ex. C. However, the next day, May 17, 

2023, the RO sent the veteran a certificate of eligibility for 33 months and 15 days of education 

benefits. Secretary's Resp. Ex. D. The certificate noted neither section 3695(c) nor § 21.4020 and 

offered no explanation for the new eligibility determination. Other than the number of months and 

days of eligibility, the May 2023 certificate was the same as the September 2022 certificate.

The Secretary blames the veteran for his predicament because he is appealing to the Board 

rather than trusting the RO to correct its error on higher level review by applying the Veterans 

Benefits Manual (M22-4). Secretary's Resp. at 8. There are several problems with the Secretary's 

response. First, the manual provision did not prevent either the error in this case or the errors 

chronicled in the 2016 and 2022 Board decisions the veteran cited. Second, the manual provision 

is not binding. See, e.g., Natl. Org. of Veterans' Advocates, Inc. v. Sec. of Veterans Affairs, 981 

F.3d 1360, 1376 (Fed. Cir. 2020); Healey v. McDonough, 33 Vet.App. 312, 320 (2021); 38 C.F.R. 

§ 20.105 (2023) ("The Board is not bound by Department manuals."). The Secretary refers to the 

manual as "internal VA guidance." Secretary's Resp. at 10. Third, the manual is not a model of 

clarity on this issue. The subsection the Secretary relies upon, section 4.07 (titled "The 81-Month 

Rule"), offers little assurance that adjudicators will apply the statute correctly. Section 4.07 cites 

the public law that enacted section 3695(c), but not the statute itself. Section 4.07 does not mention 

§ 21.4020 (much less any conflict between the statute and the regulation). Section 4.07 notes that 

an October 2013 public law, "authorizes VA to award up to 81 months of entitlement to individuals 

who use the Survivors’ and Dependent’s Educational Assistance program (Chapter 35) combined 
12

with entitlement from the other VA education programs." Veterans Benefits Manual (M22-4), pt. 

12, ch. 2, sec. 4.07 (last updated Dec. 18, 2015) (available at https://www.knowva.ebenefits.va.

gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/

554400000001018/content/554400000073785/Sub-Chapter-4-Entitlement-Issues#407). 

However, more than 11 years after the statute's enactment, the manual says that "[t]o deal with this 

scenario, VA is in the process of adding functionality to [technology] systems," and that "[i]n the 

meantime, manual procedures will be used by . . . personnel in the adjudication of affected claims." 

Id. And a preceding section of subchapter 4 gives but one example of "Eligibility for Post-9/11 GI 

Bill and Another VA Education Benefit," saying that the veteran "is eligible for a maximum of 48 

months under any two VA programs." Id. at section 4.02.

Most tellingly, the Secretary offers no commitment or plan to square § 21.4020 with section 

3695(c). Nearly 18 months after the RO applied the regulation to limit the petitioner's benefits and 

nearly 15 months after the Board dealt with an RO misapplying § 21.4020 to limit another veteran's 

benefits, the regulation remains unchanged. 

Instead of meaningful steps to ensure that adjudicators get it right, so an injunction would 

have nothing to enjoin, the Secretary makes another argument that puts the onus on veterans. The 

Secretary argues that enjoining VA from denying education benefits to which veterans are entitled 

under section 3695(c) "would be against the public interest" because it would "encourage claimants 

to assume financial or other obligations in anticipation of the receipt of VA benefits but prior to 

the actual grant of such benefits, then seek the extraordinary remedy of an injunction as a routine 

matter in place of the normal appeal process." Secretary's Resp. at 11. It sounds like the Secretary 

shares the petitioner's lack of confidence that section 3695(c) will be faithfully applied (to override 

§ 21.4020) so that veterans' statutory entitlement will be fulfilled.

"[W]hen the likelihood of success on the merits is great, a movant can show somewhat less 

in the way of irreparable harm and still garner preliminary injunctive relief." E.E.O.C. v. Astra 

U.S.A., Inc., 94 F.3d 738, 743 (1st Cir. 1996). In addition to the high likelihood of success, the 

balance of equities and the public interest also overwhelmingly favor the petitioner. The petitioner 

is a U.S. Army veteran whose active service of over 10 years included three deployments to 

Afghanistan. Pet. Ex. F, G. And his father served in the U.S. Navy for over 29 years. Pet. Ex. G.

Based on his father's service, the petitioner was entitled to and received educational assistance, 

under chapter 35 of title 38 of the United States Code, to pay some of the costs of earning his 

college degree at The Citadel, the Military College of South Carolina, which he did before 

beginning active Army service. Pet. at 7; see 38 U.S.C. §§ 3501, 3510 (eligible spouses and 

children of disabled veterans are entitled to receive educational assistance). After his active 

service, the petitioner was accepted into an MBA program at the University of North Carolina at 

Chapel Hill and applied for the education benefits to which he was entitled, based on his own 

service, under chapter 33. Pet. Ex. G.; see 38 U.S.C. § 3311(a) (establishing an entitlement to 

educational assistance for covered individuals who served in the armed forces on or after 

September 11, 2001).

Veterans benefits—including education benefits—are statutorily mandated, not 

discretionary. See Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). A veteran who 

meets the statutory eligibility requirements is entitled to benefits. Id. "These statutes provide an 
13

absolute right of benefits to qualified individuals." Id. at 1297. "[S]uch entitlement to benefits is a 

property interest protected by the Due Process Clause of the Fifth Amendment to the United States 

Constitution." Id. at 1298; see Devine v. Cleland, 616 F.2d 1080, 1086 (9th Cir. 1980).

Moreover, the veterans benefits system "is strongly and uniquely pro-claimant." Hodge v. 

West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The public interest screams in favor of the veteran 

because the possibility of any harm to the Secretary in satisfying the veteran's statutory entitlement 

to education benefits is miniscule, even nonexistent, but the veteran faces irreparable harm without 

those benefits, and it is a core value of our Nation to care for those who have borne the battle and 

for their surviving spouses and children. See Ribaudo, 21 Vet.App. at 162 (Schoelen, J., 

dissenting). That core value reflects national gratitude for the special sacrifices made by veterans 

and sets the overriding purpose of veterans benefits laws. Barrera v. Gober, 122 F.3d 1030, 1039-

40 (Fed. Cir. 1997) (Plager, J., concurring); see Sneed v. Shinseki, 737 F.3d 719, 728 (Fed. Cir. 

2013) ("The veterans benefits scheme is . . . 'imbued with special beneficence from a grateful 

sovereign.'" (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J., 

concurring)). Education benefits address veterans' extreme sacrifices, including their loss of 

educational advantages, job opportunities, and business ventures, as well as serious difficulties in 

readjusting to civilian life. See Johnson v. Robison, 415 U.S. 361, 380-81 n. 15 (1974).

C. Mootness Exceptions Apply

Two related exceptions to mootness apply to this situation: voluntary cessation and 

capable-of-repetition-but-evading-review. "[A] defendant's voluntary cessation of a challenged 

practice does not deprive a federal court of its power to determine the legality of the practice, even 

in cases in which injunctive relief is sought." Speech First, Inc. v. Fenves, 979 F.3d 319, 328 (5th 

Cir. 2020). Official abandonment of a challenged practice "is an important factor bearing on the 

question whether a court should exercise its power to enjoin the defendant from renewing the 

practice," City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982), and "[a] case might 

become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior 

could not reasonably be expected to recur," Id. at 289 n.10; see Cardona v. Shinseki, 26 Vet.App. 

472, 476 (2014) (noting that the voluntary cessation exception is based on the concern that a party 

could resume the challenged conduct after evading judicial review). Though "a defendant claiming 

that its voluntary compliance moots a case bears the formidable burden of showing that it is 

absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur," a 

petitioner still has to show a threat of injury to obtain an injunction. Friends of the Earth, Inc. v. 

Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 190-92 (2000).

"'[P]ast wrongs are evidence' of the likelihood of future injury,' but 'do not in themselves 

amount to the threat of injury necessary to warrant an injunction.'" Missouri v. Biden, 83 F.4th 

350, 367 (5th Cir. 2023) (quoting Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 375 

(5th Cir. 2021)(alteration in original). However, "'[w]here the harm alleged is directly traceable to 

a written policy . . . . there is an implicit likelihood of its repetition in the immediate future.'" 

Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (quoting Armstrong v. 

Davis, 275 F.3d 849, 861 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 

543 U.S. 499, 504-05 (2005) (alterations in original)). Therefore, a petitioner "may 'demonstrate 

that [an] injury is likely to recur' by showing 'that the defendant had, at the time of the injury, a 

written policy, and that the injury 'stems from' that policy.'" Fortyune, 364 F.3d at 1081 (quoting 
14

Armstrong, 275 F.3d at 861). In this case, it is beyond cavil that the injury stems from something 

stronger and more enduring than mere policy: a longstanding regulation.

In Cardona, this Court surveyed caselaw on the voluntary cessation exception to mootness. 

26 Vet.App. at 476-81. Important here, Cardona summarizes cases where "government officials 

provided insufficient evidence of actual change" as follows:

See CSI Aviation Servs., Inc. v. U.S. Dep't of Trans., 637 F.3d 408, 414 (D.C. Cir.

2011) (rejecting mootness argument because "promised rulemaking has yet to occur 

and CSI's exemption is merely temporary"); Seneca v. Arizona, 345 Fed.Appx. 226, 

228 (9th Cir. 2009) ("merely fil[ing] an affidavit stating that the 'policy changed'" 

is insufficient to demonstrate mootness); Rothe [Development Corp. v. Department 

of Defense, 413 F.3d 1327, 1332-33 (Fed. Cir. 2005)] . . . ; Gates v. Cook, 376 F.3d 

323, 337 (5th Cir. 2004) (Department's "assertions that it intends to meet these 

standards do not suffice to moot the issue"); Tsombanidis v. West Haven Fire Dep't, 

352 F.3d 565, 574 (2d Cir. 2003) (mere testimony of changed interpretation is 

insufficient to demonstrate mootness); N.Y. Pub. Interest Research Grp. v. 

Whitman, 321 F.3d 316, 327 (2d Cir. 2003) (mere "letter of commitment" is 

insufficient to demonstrate mootness); Am. Iron & Steel Inst. v. E.P.A., 115 F.3d 

979, 1007 (D.C. Cir. 1997) (rejecting mootness argument because Agency's 

change, inter alia, "could be ignored by local EPA officials").

Cardona, 26 Vet.App. at 481 n.7. The circumstances in this case fit within the Cardona summary.

As the petitioner argues, the capable-of-repetition-yet-evading-review exception also 

defeats mootness here. See Petition at 10. The mootness exception for matters capable of repetition 

but evading review applies when "'(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.'" NIKA Techs., Inc. v. United States, 

987 F.3d 1025, 1027–28 (Fed. Cir. 2021) (quoting Kingdomware Techs., Inc. v. United States, 579 

U.S. 162, 170 (2016) (holding that the exception applied because the contracts at issue would be 

fully performed is less than two years, a period "too short to complete judicial review of the 

lawfulness of the procurement.")) (alterations in original). Regarding the expectation that the 

petitioner will experience the same problem again, "[t]he question is 'whether the controversy [is] 

capable of repetition and not . . . whether the claimant [has] demonstrated that a recurrence of the 

dispute was more probable than not.'" Id. at 1028 (quoting Honig v. Doe, 484 U.S. 305, 318 n.6 

(1988) (alterations in original). This "narrow exception applies to disputes that by their nature will 

become moot before litigation runs its course, such as a college graduation date, and thus are 'likely 

forever' to evade appellate review." Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 396 

(6th Cir. 2020) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 481–82 (1990)). Disputes over 

education programs "are generally too short in duration to be fully litigated prior to cessation or 

expiration" because they last for one year or less and administrative and judicial review processes 

take longer. K.A. ex rel. F.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195, 1200 (11th Cir. 2013); A.D. 

ex rel. L.D. v. Hawaii Dept. of Educ., 727 F.3d 911, 914 (9th Cir. 2013) (holding that, because 

every 20–year–old challenger to a statutory limit to special education eligibility will age out within 
15

two years, "[t]he litigation window might never stay open long enough to resolve whether such 

students are entitled to stay-put injunctions.").

D. Conclusion

Like the majority, I am troubled by VA's "ongoing failure for more than a decade to revise 

§ 21.4020 to reflect the changes to section 3695." Ante at 6. And I join the majority in "strongly 

urg[ing] the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not 

wrongly penalized by § 21.4020." Id. But the circumstances here warrant more than concern and 

exhortation. I would grant Mr. Hambidge a preliminary injunction to preserve the status quo 

pending the resolution of his appeal.