UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-1280

CONLEY F. MONK, JR., ET AL., PETITIONERS,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before DAVIS, Chief Judge, and SCHOELEN, PIETSCH, BARTLEY, GREENBERG, ALLEN,

MEREDITH, TOTH, and FALVEY, Judges.

SCHOELEN, Judge, with DAVIS, Chief Judge, and BARTLEY, MEREDITH, TOTH, and 

FALVEY, Judges.

ALLEN, Judge, with GREENBERG, Judge, concurring in part, and dissenting in part.

PIETSCH, Judge, dissenting.

O R D E R

This petition involves appeals that pre-date VA's implementation of the Veterans Appeals 

Improvement and Modernization Act of 2017, which went into effect on February 19, 2019. See 

Pub. L. No. 115-55, 131 Stat. 1105 (2017); VA Claims and Appeals Modernization, 84 Fed. Reg. 

2449 (Feb. 7, 2019). Claims decided before that effective date are called "legacy claims" and 

appeals pending under the pre-Veterans Appeals Improvement and Modernization Act system are 

called "legacy appeals." 38 C.F.R. § 3.2400(b) (2019). Under the legacy appeals system, a 

claimant can appeal an unfavorable decision to the Board of Veterans' Appeals (Board) by filing 

a Notice of Disagreement (NOD) and later a Substantive Appeal before the claim ultimately 

reaches the Board. 38 U.S.C. § 7105(a) (2018). 

In this matter, petitioners1argue that VA's delays in deciding their appeals under the legacy 

system have been unreasonable and a violation of due process rights. The Court will deny

Mr. Dolphin's petition for extraordinary relief in the nature of the writ of mandamus. But as to the 

other petitioners, because they have received the relief they sought, the Court will dismiss the other

petitions as moot. 

 

1

In addition to Mr. Monk, the petitioners are James Briggs, Tom Coyne, William Dolphin, Jimmie Hudson, 

Samuel Merrick, Lyle Obie, Stanley Stokes, and William Jerome Wood II.
2

I. INTRODUCTION

On April 6, 2015, Conley F. Monk, Jr., filed a petition with the Court on behalf of himself 

and similarly situated individuals for extraordinary relief in the nature of a writ of mandamus. The 

petition sought an order directing the Secretary to decide appeals within 1 year after a class member 

files a corresponding NOD. The petition alleged that the Secretary's delay in adjudicating claims 

for disability compensation benefits constituted an unreasonable delay and violation of the right to 

due process under the Fifth Amendment of the U.S. Constitution. The Court construed this petition 

as a motion for class action, which in a nonprecedential order it denied on May 27, 2015. Monk v. 

McDonald (Monk I), No. 15-1280, 2015 WL 3407451 (Vet. App. May 27, 2015). Mr. Monk

appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit 

reversed the denial and remanded the matter for further proceedings. Monk v. Shulkin (Monk II), 

855 F.3d 1312 (Fed. Cir. 2017). 

After the appeal returned from the Federal Circuit, this Court determined to proceed en 

banc given the novelty of the aggregate-action question. Subsequently, on January 23, 2018, the 

en banc Court granted the petitioner's motion to join James Briggs, Tom Coyne, William Dolphin, 

Jimmie Hudson, Samuel Merrick, Lyle Obie, Stanley Stokes, and William Jerome Wood II as 

additional petitioners and putative class representatives. On August 23, 2018, an equally divided 

Court denied the petitioners' motion for class certification. Monk v. Wilkie (Monk III), 30 Vet.App. 

167 (2018) (en banc order). The matter of class certification is currently pending before the Federal 

Circuit. See Monk v. Wilkie (Monk IV), No. 19-1094 (Fed. Cir. petitioners'-appellants' reply brief 

filed Apr. 23, 2019). The en banc Court returned the matter to a panel to address the individual 

petitions on the merits. On March 27, 2019, the panel held oral argument to address the merits of 

the nine individual petitions. Subsequently, the matter was returned to the en banc Court.

II. ISSUES

The Court must address (1) whether it has jurisdiction over the merits of the individual 

petitions while the class certification question is on appeal before the Federal Circuit and (2) which 

of the nine petitioners' petitions are now moot because of procedural development at VA.

Based on the reasons provided below, the Court determines that it retains jurisdiction over 

the individual petitions, but that only Mr. Dolphin's circumstances present an active case or 

controversy. The Court will address whether a writ is warranted based on the delays alleged in 

Mr. Dolphin's case. For the following reasons, the Court will deny his petition and dismiss the 

petitions as to the other eight petitioners.

III. THE COURT RETAINS JURISDICTION TO ADDRESS THE INDIVIDUAL 

PETITIONS

Before the Court can address the individual petitions, we must determine whether we have 

jurisdiction to do so. This is not a discretionary inquiry. "The Court has an independent obligation 

to ensure that it has jurisdiction to act." Demery v. Wilkie, 30 Vet.App. 430, 434 (2019) (per curiam 

order); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (holding that all 
3

Federal appellate courts have an independent obligation to satisfy themselves that they have 

jurisdiction over appeals before them).

The jurisdictional question arises because, after an equally divided Court denied the 

petitioners' request to certify a class, see Monk III, 30 Vet.App. at 169, the petitioners filed a Notice 

of Appeal (NOA) to the Federal Circuit challenging that decision. See Monk IV.

2 Recognizing that,

in some circumstances, filing an appeal in a reviewing court may affect the jurisdiction of the court 

from which an appeal has been taken, see, e.g., Griggs v. Provident Consumer Disc. Co., 459 U.S. 

56, 58 (1982), after oral argument, the panel ordered the parties to file supplemental briefs on the 

jurisdictional question. The petitioners argued that filing the appeal concerning class certification 

did not affect this Court's jurisdiction to address the individual petitions. In contrast, the Secretary 

asserted that the Court lacks jurisdiction while the class certification appeal is pending.

There is no precedent directly on point with respect to this jurisdictional question. It was 

only 2 years ago that the Federal Circuit held that this Court had the authority to entertain class 

actions. See Monk II, 855 F.3d at 1322. And in those 2 years, neither this Court nor the Federal 

Circuit has had occasion to consider what filing an appeal at the Federal Circuit of this Court's

class action determination means for our continued jurisdiction over the merits of a petition (or 

appeal).

The Court begins with widely accepted practice in Federal appellate courts. The Supreme 

Court has held that "[t]he filing of a notice of appeal is an event of jurisdictional significance – it 

confers jurisdiction on the court of appeals and divests the district court of its control over those 

aspects of the case involved in the appeal." Griggs, 459 U.S. at 58 (emphasis added); see also 

Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 378-79 (1985) (recognizing that a 

lower court retains jurisdiction in situations in which it will "not interfere with" the issues on 

appeal). The Supreme Court's statement reflects the principle that a case should not be in two 

places at once with respect to the same issue. 

Applying this principle, the United States Court of Appeals for the Second Circuit has 

explained that "the filing of a notice of appeal only divests the district court of jurisdiction 

respecting the questions raised and decided in the order that is on appeal." N.Y. State Nat'l Org. of 

Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). Other courts of appeals agree. See In re 

Grand Jury Subpoenas Duces Tecum, 85 F.3d 372, 375 (8th Cir. 1996) (describing situations in 

which a district court retains jurisdiction when an appeal is pending in a court of appeals); Alberti 

v. Klevenhagen, 46 F.3d 1347, 1359 (5th Cir. 1995) (same); Ced's Inc. v. U.S. Envtl. Prot. Agency, 

745 F.2d 1092, 1095 (7th Cir. 1984) (same).

This Court has considered the general question of what filing an NOA at the Federal Circuit 

means for continued proceedings here. In Sumner v. Principi, the Court stated that "[t]he 

 

2 We note that the petitioners filed their NOA as if they had a right to such an appeal. A right to an appeal is 

available under 38 U.S.C. § 7292(a) for "a decision" of the Court. In contrast, for "an order not otherwise appealable" 

under section 7292(a), a party may, under certain circumstances, seek certification from this Court allowing the party 

to petition the Federal Circuit to hear an immediate appeal. See 38 U.S.C. § 7292(b)(1). The petitioners did not seek 

certification under subsection (b)(1). Accordingly, the Court proceeds under the assumption that the appeal is properly 

the subject of section 7292(a) as the petitioners have maintained.
4

appellant's filing of an NOA to the Federal Circuit divests this Court of all jurisdiction over this 

case." 15 Vet.App. 404, 405 (2002) (en banc order). The Secretary argues that this sentence 

supports his argument that this Court lacks jurisdiction over the merits of the petitions. But a literal 

reading of this statement would strip the statement of its context and take this Court out of the 

mainstream of Federal appellate court practice, including Federal appellate court practice as the 

Supreme Court of the United States recognizes it. In other words, Sumner's statement read too 

broadly would neglect the important qualification that concurrent jurisdiction is inappropriate for 

"those aspects of the case involved in the appeal." Griggs, 459 U.S. at 58.

And this reading of Sumner also makes sense based on Sumner's facts. In Sumner, the Court 

had denied the appellant's motion for attorney fees under the Equal Access to Justice Act, 

28 U.S.C. § 2412(d). 15 Vet.App. at 404. The appellant moved for reconsideration of the Court's 

decision on attorney fees. Id. However, before the Court could act on the motion, the appellant 

filed an NOA to the Federal Circuit as to the attorney-fee issue – the same issue the Court 

considered in the motion for reconsideration. Id. at 405. It was in that context that the en banc 

Court made its statement about being divested of jurisdiction. We assume that our Court's 

statement in Sumner was meant to align practice here with that of other Federal appellate courts. 

And, in context, Sumner comports with general Federal appellate court practice.

3

Applying the law to the case before us, we conclude that the Court retains jurisdiction to 

address the merits of the individual petitions. The issues the petitioners appealed to the Federal 

Circuit in Monk IV are whether (1) this Court applied the correct legal standard in determining 

whether the proposed class members presented a common question for adjudication under Federal 

Rule of Civil Procedure 23(a)(2); (2) the Court erred in not certifying the proposed class; and 

(3) the Court misapprehended the requirements of Federal Rule of Civil Procedure 23(b)(2). See 

Opening Brief of Petitioners-Appellants in Monk IV at 3.

These three questions are distinct from the issues presented in the individual petitions, 

namely whether VA's delay in adjudicating the individual claims was unreasonable or 

unconstitutional, or both. Our resolution of that question for each petitioner will in no way interfere 

with the Federal Circuit's legal determination concerning commonality or any other issue before 

that court in addressing class action certification. And the Supreme Court's jurisprudence bolsters 

our conclusion that class action issues stand apart from unreasonable-delay issues because the 

Supreme Court has instructed that "[m]erits questions may be considered to the extent–but only to 

the extent–that they are relevant to determining whether the Rule 23 prerequisites for class 

certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 

(2013). In other words, any consideration at the Federal Circuit of the merits questions that are 

 

3 The Court's decision is also consistent with cases based on the principle announced in Cerullo v. Derwinski,

that once this Court exercises jurisdiction over a matter, the Board may not consider the same issue. 1 Vet.App. 195, 

197 (1991) (holding that, "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal may not consider 

the same issues" (emphasis added)); see also Young v. Shinseki, 25 Vet.App. 201, 204-05 (2012) (en banc order) 

(holding that "[t]he Court's review of the propriety of the [Board's] referral action is separate and apart from the 

[regional office's (RO's)] adjudication of the merits of the referred matter and therefore does not contravene Cerullo").
5

before us is quite limited. Accordingly, the Court concludes that the issues before us are not part 

of the "aspects of the case involved in the appeal" at the Federal Circuit.4 Griggs, 459 U.S. at 58. 

The Court also observes that the Federal Circuit apparently proceeded on the assumption 

that an NOA concerning class certification does not divest this Court of jurisdiction over individual 

merits questions. In Monk I, a single Judge of this Court denied class certification. 2015 WL 

3407451, at *4. The petitioner then filed an NOA to the Federal Circuit as to that class certification 

question. While that appeal was pending, the single Judge denied the individual petition on the 

merits. Monk v. McDonald, No. 15-1280, 2015 WL 4139012 (Vet. App. Jul. 8, 2015) (order). The 

petitioner appealed that decision as well. In Monk II, the Federal Circuit consolidated the appeals 

and stated: "On May 27, 2015, and July 10, 2015, Mr. Monk filed two timely appeals before the 

court, one challenging the Veterans Court decision to deny his individual disability claim and the 

other to appeal the Veterans Court's decision denying his request for a class action." 855 F.3d at 

1315. While we do not assert that in Monk II the Federal Circuit focused on the jurisdictional 

question we confront today, its statement does not call into question the propriety of our continued 

adjudication of the merits after the NOA as to class certification had been filed. Indeed, the Federal 

Circuit noted that both appeals were "timely" and, apparently, properly before that court. Id.

The Court adds one final point to support our jurisdictional conclusion. If the Court were 

to hold that it did not continue to have jurisdiction over the individual petitions because the class 

certification appeal remains pending, the Court would treat class certification decisions in this 

Court differently than those adjudicated in the district courts. For all those decisions, the Federal 

Rules of Civil Procedure provide that an appeal of an issue of class action certification or class 

modification "does not stay proceedings in the district court unless the district judge or the court 

of appeals so orders." FED. R. CIV. P. 23(f). Though we recognize that these rules do not apply to 

this Court, a significant incongruity would result if we declined to proceed here because we lacked 

the power to do so. See FED. R. CIV. P. 1. Thus, in aligning its practices with those of the rest of 

 

4

Judge Pietsch's dissent relies on Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), for the contention that 

the Supreme Court has made clear that a district court order denying class certification is an interlocutory decision 

and not a final decision, which entitles a party to an appeal as of right. Post at 25. However, whether an appellate court 

has jurisdiction over such an interlocutory decision implicates the jurisdiction of the appellate court, which was the 

issue in Microsoft. Here, the issue before the Court concerns our jurisdiction over the underlying merits of the 

individual petitions. The Supreme Court in Griggs made clear that a lower court continues to have jurisdiction over 

the underlying merits of a case that is unrelated to the aspects of the appeal before an appellate Court. See Griggs, 459 

U.S. at 58; Marrese, 470 U.S. at 378-79. 

Judge Pietsch also contends that the Court should have "immediately returned" to the petitioners their NOA 

to the Federal Circuit of our August 2018 order denying class certification. Post at 26. However, Judge Pietsch's 

dissent cites no authority that would have authorized this Court to have taken such an action. Our Court receives the 

NOA to the Federal Circuit, but it is for the Federal Circuit to determine whether it has jurisdiction over the underlying 

appeal. 38 U.S.C. § 7292(a); see Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[A] statutory tribunal must 

ensure that it has jurisdiction over each case before adjudicating the merits, . . . [and] a potential jurisdictional defect 

may be raised by the court or tribunal, sua sponte . . . and, once apparent, must be adjudicated." (emphasis omitted)). 
6

the Federal system, the Court would not only take a legally proper course of action, but it would 

also take the most sensible approach.

5

After careful consideration, the Court concludes that the pendency of an appeal concerning

class certification has not divested us of jurisdiction to adjudicate the merits of the individual 

petitions. It is noteworthy that neither party has asked us (or the Federal Circuit) to stay 

proceedings in this appeal. So, we turn to the individual petitions.

IV. MOOT PETITIONS

In this matter, there are nine petitioners before the Court. The Court will address below 

Mr. Dolphin's petition on the merits. See Part V, infra. As to the eight remaining petitioners, the 

Court finds that they fall into one of three categories: (1) Those who have filed a motion to dismiss 

their individual petitions as moot; (2) those who concede their petitions are moot but ask to remain 

as potential class representatives should the Federal Circuit reverse this Court's decision not to 

certify the proposed class; and (3) those who claim the circumstances of their cases fall under an 

exception to mootness. We will discuss each of these categories in turn.

A. Petitioners Who Have Filed a Motion To Dismiss Their Petitions as Moot

On November 23, 2018, James Briggs and William Jerome Wood II jointly filed a motion 

to dismiss, asserting that because the Secretary had provided the relief they sought, their individual 

petitions are moot. They further noted that they no longer wished to serve as class representatives. 

This Court has adopted the case-or-controversy jurisdictional requirements under Article 

III of the U.S. Constitution. Aronson v. Brown, 7 Vet.App. 153, 155 (1994). Where VA has 

provided all relief sought by a petition for extraordinary relief, the petition is moot. See, e.g., 

Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order); Mokal v. Derwinski, 1 Vet.App. 

12, 15 (1990). Based on the foregoing, the Court will grant Mr. Briggs's and Mr. Wood's motion 

to dismiss their petitions. 

B. Petitioners with Moot Petitions Who Wish To Remain Class Representatives

In an October 2018 response to a Court order, Mr. Coyne, Mr. Merrick, and Mr. Stokes 

conceded that their petitions were moot: Mr. Coyne, Mr. Merrick, and Mr. Stokes have each 

received all the relief sought in their petitions for extraordinary relief. See Petitioners' October

2018 Response (Pet. Oct. 2018 Resp.) at 1; Aronson, 7 Vet.App. at 155; see also Thomas, 

9 Vet.App. at 270; Mokal, 1 Vet.App. at 15. However, they asserted that they "reserve their right 

to serve as class representatives" in the class action matter pending at the Federal Circuit and 

"request[ed] that their individual claims not be dismissed." Pet. Oct. 2018 Resp. at 2. 

 

5 We are not suggesting that the Federal Circuit should use Rule 23 to support its jurisdiction in the appeal 

before it. Like our Court, the Federal Circuit has its own independent obligation to ensure it has jurisdiction. See Steel 

Co., 523 U.S. at 94-95. It is for the Federal Circuit to determine whether it has jurisdiction over the appeal of the class 

certification decision in Monk IV. 
7

At oral argument, the petitioners' counsel conceded that the issue whether these petitioners 

were valid class representatives was before the Federal Circuit and could be decided by that court 

while this Court addresses the merits of the petitions. See Oral Argument (O.A.) at 1:21:18-22:20

(oral argument held Mar. 27, 2019). Given the jurisdictional questions raised in this matter as 

discussed above, the Court agrees that the issue of who can be a class representative is currently 

before the Federal Circuit, and this Court may not weigh in on this issue. Thus, the Court will 

dismiss Mr. Coyne's, Mr. Merrick's, and Mr. Stokes's petitions. 

C. Petitioners Who Claim Mootness Exceptions

Finally, Mr. Monk and Mr. Hudson argue that, although their petitions are moot because 

they received Board decisions, they are still entitled to a writ under an exception to mootness. 

Specifically, these petitioners argue that their claims will be subject to delay in the future, as they 

continue to move through the VA appeals process, and the petitioners point out the practice of 

"strategic mooting" by the Secretary when petitions alleging delay are brought before the Court.

See Petitioners' January 2019 Supplemental Brief (Pet. Jan. 2019 Supp. Br.) at 34-36.

At oral argument, petitioners' counsel also argued that Ms. Obie's petition should be 

considered under an exception to the mootness doctrine. O.A. at 8:11-40. By way of background, 

Ms. Obie informed the Court on March 7, 2019, that VA had granted dependency benefits for her 

daughter on November 16, 2018. Her daughter's dependency benefits formed the basis of Ms. 

Obie's petition before the Court. Thus, she received the relief she sought before the Court. 

However, she argues that though the grant of benefits is no longer at issue, she originally asked 

for an effective date earlier than that VA had assigned, and her original NOD has not been fully 

resolved. See Petitioner's March 2019 Solze Notice (Pet. Mar. 2019 Solze Notice) at 2-3; see also

O.A. at 1:15:44-17:43.

The effective-date issue lies downstream from the initial grant of benefits, and the initial 

NOD that appealed the denial of benefits cannot initiate appellate review of the downstream 

element. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Thus, Ms. Obie's 

petition is also moot.

We turn to the exceptions to mootness these petitioners advance. The capable-of-repetitionbut-evading-review exception to mootness applies 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.'" Fed. 

Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kemna, 

523 U.S. 1, 17 (1998)). With respect to the first prong, the issues underlying petitions asserting

delay generally will not be resolved by VA before the Court has an opportunity to reach a decision

on the merits of the petitions. Here, it was only after the Court resolved the class action issue 

(which is on appeal to the Federal Circuit) and was well into considering the merits of the 

individual petitions that VA resolved the petitions by issuing Board decisions on Mr. Monk's and 

Mr. Hudson's claims and a rating decision on Ms. Obie's claim. Certainly, for these petitioners, the 

delay in their cases was not too short to be fully litigated. The action they sought to compel has 

been taken, so the delay for them no longer exists because they have gotten precisely what they 

sought. In other words, the concept of a wrong being too short to rush to court does not fit 
8

comfortably with delay-based claims (at least, outside the class action context, as noted below, see 

supra note 4). The Court does not need to decide whether this would be true for all delay-based 

claims. However, it is true on the facts before us.

As to the second prong, these petitioners assert that future claims within VA's appeals 

process will result in delay. We find these assertions speculative. Furthermore, these petitioners 

can file petitions with the Court if any such future delay occurs and this matter has not been 

certified as a class action. Cf. Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). Thus, the 

mootness exception for claims that are capable of repetition yet evade review does not apply here.

As to the voluntary-action-by-the-defendant exception to mootness, these petitioners 

apparently make two related points. First, because the Secretary often acts to address claims 

asserted in a petition, thereby avoiding Court review of the legality of its practices, the Court 

should deem their petitions not moot. The Supreme Court established that "[t]o deny the right to 

appeal simply because the defendant has sought to 'buy off' the individual private claims of the 

named plaintiffs would be contrary to sound judicial administration." Deposit Guar. Nat'l Bank v. 

Roper, 445 U.S. 326, 339 (1980). However, this exception is designed to prevent individual class 

representatives from being "picked off" and thus preventing a group of similarly situated persons

from proceeding as a class. Id. That rationale does not apply to the merits here because the Court

denied class certification. 6 That could change should the Federal Circuit reverse this Court's 

decision, but for now there is no class with which to be concerned. Furthermore, Mr. Monk, Mr. 

Hudson, and Ms. Obie have not shown that VA acted in bad faith in deciding their claims while 

their petitions were pending. As to Mr. Monk and Mr. Hudson, the Board is required to consider 

cases in docket number order, 38 U.S.C. § 7107, and, here, the petitioners' docket numbers were 

reached. 

The petitioners also frame the Secretary's granting the relief sought as within the 

voluntary-cessation exception to mootness, which applies where a wrongdoer voluntarily ceases

the unlawful conduct at issue. The notion here is that a court should not be deprived of jurisdiction 

when a wrongdoer is caught with his proverbial hand in the cookie jar, saying: "Don't worry, I've 

stopped and won't do it again." See generally United States v. W.T. Grant Co., 345 U.S. 629 (1953).

This notion is true as a general matter, but it doesn't fit the situation before the Court. Here, the 

wrongdoing these petitioners allege was VA's failure to timely adjudicate their claims. And VA 

has now provided exactly what these petitioners sought – VA has adjudicated their claims, which

were on appeal. In other words, VA is not like a defendant in a civil case who has stopped bad 

behavior and asks a court to trust it going forward. Any additional wrongful conduct by the 

Secretary would be materially different from what has allegedly transpired in the past. These 

petitioners essentially have tried to fit a round peg into a square hole. The voluntary-cessation 

exception to mootness simply does not apply. 

 

6 The Court recently applied a separate exception to mootness in certifying its first class in Godsey v. Wilkie, 

31 Vet.App. 207, 218-20 (2019) (per curiam order). Although both this case and Godsey involved allegations of delay, 

where the Secretary's actions mooted the claims, Godsey occurred in the context of a class, where in this matter, the 

Court has denied class certification, as discussed above. That is a significant distinction because the "inherently 

transitory" exception Godsey applied is specifically focused on class actions. See id.; see also Cty. of Riverside 

v. McLaughlin, 500 U.S. 44, 51-52 (1991); Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011). Thus, 

the "inherently transitory" exception has no application here.
9

Finally, on a practical note, it is not at all clear what the Court would order the Secretary 

to do under these petitioners' theory that their claims are not moot. As we have explained, they 

have each obtained everything they sought from the Secretary in their petitions to the Court. It is 

difficult to conceive of the orders the Court would direct to the Secretary because there is nothing 

more for the Secretary to do. 

In sum, because no exceptions to mootness apply to Mr. Monk's, Mr. Hudson's, and

Ms. Obie's petitions, they are also moot because each of these petitioners has received the relief 

they sought. See Aronson, 7 Vet.App. at 155; see also Thomas, 9 Vet.App. at 270; Mokal, 

1 Vet.App. at 15. Furthermore, this Court may not address whether these petitioners may remain 

class representatives, as, as explained above, that matter is pending at the Federal Circuit. Thus, 

the Court will dismiss Mr. Monk's, Mr. Hudson's, and Ms. Obie's petitions.

Having addressed the mooted petitions, the Court now turns to Mr. Dolphin's petition, the 

only one presenting a live case or controversy.

V. MR. DOLPHIN

A. Background

Mr. Dolphin's case has a very complex procedural history encompassing many claims for 

service connection, special monthly compensation (SMC), and dependents' educational assistance 

(DEA), as well as disputes as to disability ratings and effective dates for many of the benefits 

awarded. For purposes of Mr. Dolphin's petition, his claims began on February 26, 2014, when he

filed a formal claim for disability compensation benefits for 10 disabilities. Pet. Jan. 2019 Supp. 

Br., Exhibit (Ex.) O. In August 2014, the VA RO granted service connection for six disabilities: 

(1) PTSD, (2) left shoulder disability, (3) sciatica of the left lower leg, (4) tinnitus, (5) lower back 

disability, and (6) residuals of a traumatic brain injury (TBI).7Id. The combined disability rating 

for these disabilities was 90%, effective February 26, 2014. Id. Additionally, the RO denied service 

connection for the remaining four disabilities: (1) Hearing loss, (2) epilepsy, (3) right hand injury, 

and (4) right knee injury. Id. The following month, the RO denied a total disability rating based on 

individual unemployability (TDIU). Secretary's March 2019 Supplemental Brief (Secretary's Mar. 

2019 Supp. Br.), Ex. A. 

On November 3, 2014, Mr. Dolphin filed an NOD disputing the RO's decision on the 

disability ratings, TDIU, and effective dates for the six service-connected disabilities; and the 

denial of service connection for four disabilities. Pet. Jan. 2019 Supp. Br., Ex. P. In January 2015, 

Mr. Dolphin notified the RO that he wished to have a de novo review of his appeal by an RO 

decision review officer (DRO). Secretary's Mar. 2019 Supp. Br., Declaration of Sarah Classy. On 

March 25, 2015, Mr. Dolphin testified before the DRO.

While the DRO was acting on Mr. Dolphin's appeal of the 17 issues that are the subject of 

this petition, the DRO was also processing other claims that led to an increase in Mr. Dolphin's 

 

7 The assigned disability ratings follow: (1) 70% (PTSD); (2) 20% (left shoulder); (3) 20% (sciatica left leg); 

(4) 10% (tinnitus); (5) 10% (low back disorder); and (6) 10% (TBI). 
10

monthly compensation. For example, in June 2015, the RO granted Mr. Dolphin service connection 

for leukemia and rated this disability as 100% disabling, effective February 18, 2015. See

Secretary's Mar. 2019 Supp. Br., Ex. E and Declaration of Sarah Classy. Because of the June 2015 

RO decision, the combined schedular disability rating for Mr. Dolphin's disabilities and the rate of 

disability compensation for which he was paid for almost the entirety of his appeal, increased from 

90% to 100%. Id. Additionally, Mr. Dolphin was awarded DEA and increased compensation in 

the form of SMC for being housebound. Id.

8

On January 22, 2018, the DRO granted two of the previously denied service-connection 

claims (epilepsy and hearing loss) and granted TDIU. See Secretary's Mar. 2019 Supp. Br., Ex. E. 

Additionally, the DRO increased the disability ratings for the left shoulder from 20% to 30% and 

for the lower back from 10% to 20%.9Id. The DRO assigned a staged rating for the sciatica of the 

left leg resulting in a decreased rating from 20% to 10%, effective April 1, 2016. Pet. Mar. 2019 

Solze Notice, Ex. G; Secretary's Mar. 2019 Supp. Br., Ex. E. Finally, the DRO granted an earlier 

effective date of December 2013 for PTSD, left shoulder disability, sciatica of the left lower 

extremity, tinnitus, low back disability, and TBI. Id. On this same date, the RO issued a Statement 

of the Case (SOC). Pet. Mar. 2019 Solze Notice, Ex. F. 

On March 2, 2018, the Board received Mr. Dolphin's Substantive Appeal, which narrowed 

the appeal to the propriety of the effective date for the award of all 10 service-connected conditions 

and TDIU. Pet. Mar. 2019 Solze Notice, Ex. E. Mr. Dolphin's Substantive Appeal also included a 

request for a Board videoconference hearing.10 Id.

On February 7, 2019, the RO notified Mr. Dolphin that his appeal had been certified to the 

Board. Id., Ex. I. In August 2019, the Board notified Mr. Dolphin that his appeal had been placed 

on the Board's docket. Pet. Sept. 2019 Solze Notice.

B. Application of TRAC Factors

This Court has authority to issue extraordinary writs in aid of its jurisdiction pursuant to 

the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998); 

Kelley v. Shinseki, 26 Vet.App. 183, 185 (2013) (per curiam order). These writs include writs of 

mandamus to "compel action of the Secretary unlawfully withheld or unreasonably delayed." 

38 U.S.C. § 7261(a)(2); see Martin v. O'Rourke, 891 F.3d 1338, 1343 (Fed. Cir. 2018). However, 

"[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr 

v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976). Three conditions must be met 

before the Court can issue a writ: (1) The petitioner must demonstrate the lack of adequate 

alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute 

 

8 During the appeal period, the RO also granted Mr. Dolphin service connection for two other conditions that 

are not part of this petition: Coronary artery disease (initially rated 10% disabling and then increased to 30%) and 

diabetes (rated 20% disabling). Id.

9 An earlier effective date of December 2, 2013, was also granted for entitlement to DEA.

10 On October 1, 2019, Mr. Dolphin withdrew his request for a Board hearing. Pet.'s Response to Court's 

Sept. 2019 Order.
11

for the appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the 

writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is 

warranted. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004); Kelley, 

26 Vet.App. at 186. 

"[T]he overarching inquiry in analyzing a claim of unreasonable delay is 'whether the 

agency's delay is so egregious as to warrant mandamus.'" Martin, 891 F.3d at 1344 (Fed. Cir. 2018)

(quoting Telecomms. Research & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984)). 

In Martin, the Federal Circuit held that the factors outlined in TRAC provide an appropriate 

framework for analyzing claims of unreasonable delay. Id. at 1348. TRAC identified six factors 

that the Court should weigh to determine whether VA's delay is so egregious to warrant mandamus: 

(1) [T]he time agencies take to make decisions must be governed by a "rule of 

reason"; (2) where 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) delays that might 

be reasonable in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the effect of expediting 

delayed action on agency activities of a higher or competing priority; (5) the court 

should also take into account the nature and extent of the interests prejudiced by 

delay; and (6) the court need not "find any impropriety lurking behind agency 

lassitude in order to hold that agency action is 'unreasonably delayed.'"

750 F.2d at 80 (citations omitted). These are factors that must be balanced in an individual case. 

They are not elements to be checked off a list. The Court now turns to each factor as it applies

specifically to Mr. Dolphin's petition.

1. Rule of Reason

Mr. Dolphin urges the Court to hold that it was conclusively unreasonable and a violation 

of his due process rights to wait more than 12 months after he filed his November 2014 NOD for 

the Board to issue a decision on his appeal. Pet. Jan. 2019 Supp. Br. at 15-16. Alternatively, he 

argues that the "years-long" delay he experienced "far surpasses any cogent 'rule of reason.'" Id. at 

16.

Although Mr. Dolphin argues that "the first TRAC factor is focused on the length of delay 

in its entirety, not VA's level of activity" within this period, id. at 21, the Federal Circuit 

resoundingly rejected this approach in Martin when it made clear that it was unwilling to create a

"hard and fast rule with respect to the point in time at which delay [in the adjudication of VA 

claims] becomes unreasonable." Martin, 891 F.3d at 1346. Rather, Martin states that the "rule of 

reason" requires this Court to "look at the particular agency action for which unreasonable delay 

is alleged" and evaluate the reasonableness of the delay given the specific factual circumstance 

before the Court. 11 Id. at 1345; see TRAC, 750 F.2d at 79.

 

11 Mr. Dolphin's argument that a wait of more than 12 months is presumptively unreasonable is not only out 

of step with Martin, but it also raises the question how the 1-year presumption of unreasonableness would work given 
12

Martin instructs the Court to consider various factors that may assist in evaluating the 

reasonableness or unreasonableness of VA's actions. For example, Martin recognizes that "[i]t is 

reasonable that more complex and substantive agency actions take longer than purely ministerial 

ones." 891 F.2d at 1345-46. Martin also directs this Court to consider whether the delay is based 

on "complete inaction" by VA or whether the delay is attributable, "in part, to the VA's statutory 

duty to assist a claimant in developing his or her case." Id. at 1346. 

Because Mr. Dolphin's NOD challenged the propriety of the disability ratings for 

6 service-connected disabilities (including TDIU), and their assigned effective dates, as well as the 

denial of service connection for 4 other disabilities, his claim involving 10 disabilities mushroomed 

into an appeal of 17 distinct issues. The sheer number of issues contested by Mr. Dolphin's NOD 

attests to his appeal's complexity. 

Additionally, a careful examination of the facts shows that much of the Secretary's delay 

in adjudicating Mr. Dolphin's appeal resulted from the Secretary's fulfilling substantive Agency 

actions to comply with statutory duties. For example, Mr. Dolphin's testimony at an RO hearing 

produced a 60-page transcript. See Secretary's Mar. 2019 Supp. Br., Ex. D. At the hearing, 

Mr. Dolphin submitted a brief to set forth his arguments and "more than 1600 pages" of military 

and medical records to support his claims. Id.

In 2016, the DRO further complied with his statutory duties by also assisting Mr. Dolphin 

in obtaining 10 additional medical examinations to evaluate his PTSD, TBI, seizures, headaches, 

peripheral nerves, lower back, shoulder, hearing loss, heart disease, and diabetes. See Secretary's 

Mar. 2019 Supp. Br., Ex. E. These examination reports were added to Mr. Dolphin's voluminous 

claims file, which already included many other medical records pertaining to the issues on appeal.12

Additionally, the DRO obtained other evidence including service records, VA treatment records, 

employment records, and Social Security Administration records. Id. 

While the DRO was adjudicating the issues on appeal, the RO also processed other claims 

that led to a significant increase in Mr. Dolphin's monthly disability compensation. In June 2015, 

the RO granted Mr. Dolphin service connection for leukemia and rated this disability as 100% 

disabling, effective February 18, 2015. Mr. Dolphin was also awarded SMC and DEA. Secretary's 

Mar. 2019 Supp. Br., Ex. E and Declaration of Sarah Classy.

 

that the deadline for filing a Substantive Appeal in a legacy appeal is the later of either the 60 days after the date the 

SOC is mailed, or the remainder of the 1-year period for filing an NOD with the RO decision being appealed. 38 C.F.R. 

§ 20.302(b)(1) (2018); see also 38 U.S.C. §§ 7105(a), (d)(3) (2018). Under the statutory and regulatory framework 

governing VA appeals, to file an NOD a claimant has a year following the date the RO decision was mailed. 

To illustrate the fallacy in Mr. Dolphin's argument, consider the following scenario: A veteran receives an 

adverse RO decision on December 1, 2009, and promptly files his NOD on December 2, 2009; the RO issues an SOC 

on January 1, 2010; the veteran waits until the last day before his appeal period expires (November 30, 2010) to file 

his Substantive Appeal, and he requests a Board hearing. Under the petitioner's argument, if the Board did not hold a 

hearing and issue its decision within 1 day, the Board's 1-day delay would be conclusively unreasonable.

12 See Secretary's Mar. 2019 Supp. Br., Ex. E (showing two pages of documents, including many medical 

records and other evidence, that were part of Mr. Dolphin's claims before the 2016 examination reports were added).
13

After developing the voluminous record in Mr. Dolphin's appeal and acting on 

Mr. Dolphin's other claims, in January 2018, the DRO issued a 21-page decision simultaneously 

with a 69-page SOC. Secretary's Mar. 2019 Supp. Br., Ex. E; Pet. Mar. 2019 Solze Notice, Ex. F.

The DRO decision contains a 6-page list of evidence that the DRO reviewed and considered in 

making his decision on the 17 issues in Mr. Dolphin's appeal. Id. The DRO granted service 

connection for hearing loss and epilepsy (two of the four disabilities that were initially denied), 

increased the disability rating for two of Mr. Dolphin's disabilities (left shoulder, and sciatica of 

the left leg),13 and assigned an earlier effective date (December 2013) for all his service-connected 

disabilities. Id. The DRO also granted Mr. Dolphin's request for TDIU. Id.

In March 2018, Mr. Dolphin perfected his appeal and narrowed the number of issues on 

appeal. Pet. Mar. 2019 Solze Notice, Ex. E. He decided not to pursue his appeal of the denial of 

service connection for the remaining two disabilities and the propriety of the disability ratings for 

his six service-connected disabilities. Id. Indeed, the only issues that remain on appeal are the 

proper effective dates for his schedular disability ratings and TDIU. Id. In February 2019, the RO 

certified his appeal to the Board. Pet. Mar. 2019 Solze Notice, Ex. I.

Contrary to Mr. Dolphin's assertion that the delay of his appeal was occasioned by VA 

inefficiency and inaction, an examination of the facts reveals that the RO took a series of actions 

required by the statutory scheme governing VA benefits. Notably, a significant portion of the delay 

between Mr. Dolphin's 2014 NOD and the January 2018 DRO decision and SOC is attributable to 

VA's actions in complying with its legal duties. The exception to this is the 10 months it took for 

the RO to certify the appeal to the Board. The Secretary has not offered any explanation for the 

delay in executing this act, which, at least in part, appears to be ministerial. But, on balance, the 

Secretary's actions have been reasonable, and the rule of reason favors the Secretary. 

TRAC's unreasonable-delay analysis requires weighing the length of time that has elapsed 

since the Agency came under a duty to act and the "rule of reason." It is telling that Judge Allen in 

his dissent (in which Judge Greenberg joins) does not find unreasonable the delay between 

Mr. Dolphin's 2014 NOD and the February 2019 appeal certification. Indeed, despite his assertions 

to having looked at the "longitudinal history of [Mr. Dolphin's] claims over the four years," Judge 

Allen makes no attempt to delve into the reasons for the length of time it took the RO to develop 

the claims, conduct a hearing, review the voluminous record, analyze the issues, and decide the 

merits of the 17 issues involved in Mr. Dolphin's appeal. See discussion supra at 11.

At this point, Mr. Dolphin has been waiting 8 months since his appeal was certified for the 

Board to issue a decision. In Godsey, the Court determined that VA had unreasonably delayed the 

appeals of a class of claimants who had been waiting at least 18 months for VA to initiate a 

pre-certification review of their cases. 31 Vet.App. at 228. The Court found the 18-month delay 

unreasonable, particularly because the pre-certification required no development. Id. The Court 

finds that here, the 8 months that Mr. Dolphin has been waiting for a Board decision is not too 

 

13 The DRO increased the disability rating for Mr. Dolphin's left shoulder from 20% to 30% and increased 

the disability rating for the lower back disability from 10% to 20%. Additionally, the DRO assigned a staged rating 

for Mr. Dolphin's left leg sciatica. 
14

long, given that this period is much shorter than the 18-month period in Godsey and the VA actions

Mr. Dolphin is awaiting involve more complexity than pre-certifying an appeal.

14

After reviewing and analyzing the entire period that Mr. Dolphin's claims have been on 

appeal, the Court concludes that, under the rule of reason, VA's delay in adjudicating the claim, 

while regretful, is not unreasonable. See Martin, 891 F.3d at 1345-46; Godsey, 31 Vet.App. at 228.

Unlike Godsey, where the delay in pre-certifying appeals to the Board "consists of nothing but 

waiting in line: no development, no adjudication, no action whatsoever on the part of VA," Godsey, 

31 Vet.App. at 228, Mr. Dolphin's appeal involves delay attributable to the time it took for VA to 

execute its statutory duties to develop and decide Mr. Dolphin's complex appeal.15

2. Congressional Timetables

Martin recognized that the second factor is often related to the first factor because a 

congressional "'timetable or other indication of the speed with which [Congress] expects the 

agency to proceed' may 'supply content' for the rule of reason." 891 F.3d at 1345 (quoting TRAC, 

750 F.2d at 80). The Court agrees with Mr. Dolphin that Congress undoubtedly has an interest in 

the prompt adjudication of appeals for VA benefits. However, it is also clear that, despite this 

concern, Congress chose to design an adjudicatory system without providing deadlines for VA 

determinations or any other secretarial action. See id. at 1345-46. In fact, rather than establishing 

timelines, Congress created a system with multiple steps for adjudication, including assisting 

claimants in developing their cases. See id. Indeed, with the recent enactment of the Veterans 

Appeals Improvement and Modernization Act, Congress again chose not to impose any deadlines 

on VA's adjudication of claims. The Secretary notes that the legislative history of the new law 

shows that the purpose of the Act was to "'expedite VA's appeals process while protecting veterans' 

due process rights.'" Secretary's Mar. 2019 Supp. Br. at 29 (quoting H. Rep. No. 115-135, at 

2 (2017)). 

Most recently in Godsey, the Court determined that, because of the lack of congressional 

deadlines surrounding certification of appeals, the second TRAC factor favored the Secretary.

31 Vet.App. at 229. Thus, the lack of congressional deadlines supports a finding under TRAC that 

the Secretary's actions fit within the rule of reason leading us to conclude that the second factor

also favors the Secretary.16

 

14 Judge Allen in his dissent finds that this 8-month period is unreasonable because Mr. Dolphin may endure 

a delay in the future while he is in a queue waiting for a Board decision. Contrary to Judge Allen's assertion that the 

majority views the rule of reason solely in terms of the 8 months that Mr. Dolphin has been waiting for a Board 

decision, the Court's conclusion is based on its consideration of the entire period that Mr. Dolphin's claims have been 

on appeal. 

15 Judge Allen's dissent turns the rule of reason factor on its head. Rather than focus on the specific reasons 

for the delay Mr. Dolphin has experienced in adjudicating his appeal, the dissent is premised on its prediction that 

Mr. Dolphin will undergo an uncertain future delay. 

16 Judge Allen finds that the lack of congressional timetables for issuing a Board decision does "not cut 

against" his determination that the rule of reason favors Mr. Dolphin. Post at 22. He states that he bases his decision 

on the fact that Mr. Dolphin had already experienced a 4-year delay in the adjudication of his appeal and that he has 

no reasonable expectation of when a Board decision will be made in his case. This reasoning is faulty for the same 

reasons Judge Allen's analysis of the first factor is faulty. Judge Allen makes no finding that the 4-year delay that 
15

3. Delays Where Health and Welfare Are at Stake and Interests Prejudiced by Delay

The third and fifth TRAC factors focus on the veteran's interest, and these two factors often 

overlap. Martin, 891 F.3d at 1346. The third factor considers that "'delays that might be reasonable 

in the sphere of economic regulation are less tolerable when human health and welfare are at 

stake.'" Id. (quoting TRAC, 750 F.2d at 80). Mr. Dolphin argues that the third factor favors him

because disability claims "'always involve human health and welfare.'" Pet. Jan. 2019 Supp. Br. at 

23 (emphasis omitted) (quoting Martin, 891 F.3d at 1346). For that reason, the third factor favors 

Mr. Dolphin. However, the weight to be accorded to this factor is lessened by the fact that 

Mr. Dolphin has been receiving the highest (100%) level of disability compensation for almost the 

entirety of his appeal. At this point, the petitioner is contesting the effective date of his claims, but 

not the monthly compensation to which he is entitled.

The fifth factor, while related to the third, focuses on "the nature and extent of the interests

prejudiced by the delay." 891 F.3d at 1346. Thus, this factor considers the effect of the delay on 

the individual veteran. Id. at 1347. Mr. Dolphin does not assert that he is "wholly dependent" on 

the benefits that would flow from the retroactive grant of his effective-date award to meet his basic 

needs (such as food, clothing, housing, medical care), and because he does not otherwise provide 

any information about his own financial circumstances, he has not satisfied his burden to show that 

he has been prejudiced by the delay. Cheney, 542 U.S. at 380-81; Erspamer v. Derwinski, 

1 Vet.App. 3, 9-10 (1990) (the petitioner has the burden of showing that his right to a writ of 

mandamus is clear and indisputable).

4. Effect of Expediting Delayed Action

The fourth TRAC factor acknowledges that VA has limited resources and is in a better 

position than this Court to decide how to use its fixed resources on other VA activities of a higher 

or competing priority. See Martin, 891 F.3d at 1347; TRAC, 750 F.2d at 80; see also Massachusetts 

v. Envtl. Prot. Agency, 549 U.S. 497, 527 (2007) ("[A]n agency has broad discretion to choose 

how best to marshal its limited resources and personnel to carry out its delegated responsibilities."). 

One of the failings in Judge Allen's dissenting opinion is that he does not acknowledge fully the 

detrimental effect that granting Mr. Dolphin's petition will have on other claimants, because VA 

"may [have to] shift a finite number of resources from one pending claim to another." Martin, 

891 F.3d at 1347. Though a shift in the focus of VA's limited resources on addressing the delay in 

Mr. Dolphin's appeal will benefit him, VA's efforts "may work a detriment to other veterans who 

are also relying on the VA for various types of assistance." Id. 

The Court is sympathetic toward veterans such as Mr. Dolphin, who are waiting for a Board 

decision. But granting Mr. Dolphin's petition will merely shift resources away from adjudicating 

claims of other veterans who may be in a less favorable position than Mr. Dolphin – who has been

receiving compensation benefits at the 100% disability rate for almost the entire duration of his 

appeal. See Ebanks v. Shulkin, 877 F.3d 1037, 1039-40 (Fed. Cir. 2017) (explaining that, in certain 

 

Mr. Dolphin has experienced was unreasonable, ignores the fact that he has only been waiting 8 months for a Board 

decision, and speculates that Mr. Dolphin will face an unspecified delay in the future. 
16

circumstances, granting individual relief to petitioners claiming unreasonable delay in "VA's 

first-come-first-served queue. . . . may result in no more than line-jumping").

Moreover, if the Court were to grant Mr. Dolphin's petition, his appeal would be advanced

ahead of those of other categories of claimants Congress has declared entitled to a higher priority. 

Mr. Dolphin has been waiting 8 months for a Board decision on his appeal. Because these two VA 

adjudications are scheduled and decided in docket order, Mr. Dolphin will jump in front of 

claimants who have earlier docket numbers.17 Mr. Dolphin's appeal would also be decided before 

those of claimants whose appeals have been advanced on the docket because they face serious 

illness or severe financial hardship.18 And Mr. Dolphin's appeal would bump individuals who are 

to be granted expeditious treatment because their appeals have been the subject of Board- or Courtordered remands.19 Clearly, a writ of mandamus ordering the Secretary to decide Mr. Dolphin's 

appeal will require VA to disregard its statutory obligations to other veterans. Having considered

some of the competing interests that must be weighed against Mr. Dolphin's allegation of

unreasonable delay, the Court holds that Mr. Dolphin has not demonstrated that VA should shift 

its limited resources to his claims and away from the claims of other veterans also awaiting 

adjudication.

Because the delay complained of here largely results from the complex nature of 

Mr. Dolphin's appeal, along with what appears to be the unavoidable result of the "practical 

realities of the burdened veterans' benefits system," the Court concludes that the fourth factor 

weighs against issuing a writ in Mr. Dolphin's case. Martin, 891 F.3d at 1347.

5. Bad Faith

The sixth factor does not favor either party. The petitioners do not allege bad faith on the 

part of the Secretary. However, TRAC makes clear that "[a] writ may be appropriate under the 

TRAC analysis even where there is no evidence of bad faith." Martin, 891 F.3d at 1348 (stating 

that "the Veterans Court need not find 'any impropriety lurking behind agency lassitude' to hold 

that agency action is unreasonably delayed" (quoting TRAC, 750 F.2d at 80)); Godsey, 31 Vet.App.

at 229 (holding that "[t]he lack of bad faith by the Secretary is, at most, de minimis support for his 

position").

After looking at the particular VA actions for which Mr. Dolphin asserts unreasonable 

delay and after analyzing the specific factual circumstances before the Court in light of Martin, the 

Court concludes that, on balance, the TRAC factors do not warrant granting Mr. Dolphin's petition 

for an extraordinary writ. However, in the future, he could seek another writ if there has been an 

unreasonable delay between the date that his appeal was certified and a Board decision.

 

17 See 38 U.S.C. § 7107(a)(1) (2018) (creating a system where appeals are decided by the Board on a firstin-first-out basis).

18 See 38 U.S.C. § 7107(a)(2) (2018); 38 C.F.R. § 20.900(c)(1) (2018). Mr. Dolphin has not sought to have 

his appeal expedited by the Board.

19 See Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 

(requiring the Board to provide expeditious treatment of appeals that have been the subject of a prior Board remand); 

38 U.S.C. § 7112 (granting expeditious treatment by the Board of appeals involving a remand from the Court).
17

C. Due Process Claims

In Martin, the Federal Circuit stated that this Court does not have to perform a separate due 

process analysis when a petition for a writ of mandamus is based on the allegation of unreasonable 

delay. 891 F.3d at 1348-49 (stating that, if this Court, "employing the TRAC analysis, finds a delay 

unreasonable (or not unreasonable), it need not separately analyze the due process claim based on 

that same delay"); Godsey, 31 Vet.App. at 230 (adopting the Federal Circuit's analysis in Martin).

Mr. Dolphin urges the Court to conduct a due process analysis because he asserts that the factors 

in TRAC are different from the due process factors. 

Mr. Dolphin argues that the Court should apply the factors set forth in Federal Deposit 

Insurance Corp. v. Mallen, 486 U.S. 230, 242-43 (1988), to determine whether in this case there 

has been a due process violation.20 Pet. Jan. 2019 Supp. Br. at 29. The test announced in Mallen

involves balancing the importance of the private interest and harm delay causes that interest; the 

justification offered by the Government for the delay and its relation to the underlying 

governmental interest; and the likelihood that the interim decision may have been mistaken. Yet 

this test is not appreciably different from the TRAC balancing test that the Federal Circuit endorsed 

in Martin. 

Moreover, even if the Court were to assume that the Mallen test is distinctive, Mr. Dolphin 

has failed to sustain his burden to prove certain elements under the test. For example, as with the 

fifth TRAC factor, Mr. Dolphin does not provide the Court with information to show how he has 

been harmed by the delay in the adjudication of his appeal. Further, he does not show the likelihood 

of mistake in the RO's determination that he is not entitled to an earlier effective date.21 Other than 

relying on general Board statistics, he makes no effort to show why the RO's determination in his 

case was mistaken. 

VI. CONCLUSION

In conclusion, Mr. Dolphin does not show that the delay in his appeal is so egregious that 

he is entitled to an extraordinary writ of mandamus.

Based on the foregoing, it is

ORDERED that Mr. Briggs and Mr. Wood's motion to dismiss is granted. It is further 

ORDERED that Mr. Briggs's, Mr. Wood's, Mr. Coyne's, Mr. Merrick's, Mr. Stokes's, 

Ms. Obie's, Mr. Monk's, and Mr. Hudson's petitions for extraordinary relief in the form of a writ 

of mandamus are DISMISSED as moot. It is further

 

20 There, the Supreme Court reformulated the balancing-factors test announced in Mathews v. Eldridge, 

424 U.S. 319 (1976).

21 For example, Mr. Dolphin does not submit his informal claim for disability compensation benefits to refute 

the RO's statement that he failed to identify the disability benefits he was seeking on his medical treatment claim.
18

ORDERED that Mr. Dolphin's petition is DENIED.

DATED: October 23, 2019

ALLEN, Judge, with GREENBERG, Judge, concurring in part, and dissenting in part:

I agree with the majority that the pendency of an appeal at the Federal Circuit concerning 

class certification does not deprive this Court of jurisdiction to adjudicate the individual petitions 

before us. I also agree that all the petitioners' claims other than those of Mr. Dolphin are moot. 

Accordingly, I join Parts III and IV of the majority opinion in full.

In contrast, I respectfully dissent from the majority's conclusion that Mr. Dolphin is not 

entitled to a writ of mandamus. I first set forth the facts concerning Mr. Dolphin's lengthy time 

before VA. Then, I explain why he is entitled to a writ under governing law. And finally, I provide 

some more general, brief comments about the Court's treatment of writs seeking relief in the 

context of extraordinary Agency delay.

I. Background of Mr. Dolphin's VA Odyssey and the Parties' Arguments

In July 2013, the Board found that Mr. Dolphin's character of discharge from May 1967 to 

January 1975 was not a bar to benefits. See Jan. 14, 2019, Supplemental Brief, Exhibit N. In an 

August 2014 rating decision, the RO awarded disability ratings for 6 service-connected conditions, 

all effective February 26, 2014; denied service connection for 4 other conditions; and deferred the 

matter of entitlement to TDIU. Id., Exhibit O. The RO denied TDIU the following month. See id., 

Exhibit P. In October 2014, Mr. Dolphin filed an NOD challenging the denial of TDIU as well as 

16 determinations from the August 2014 rating decision, including those pertaining to the 

February 26, 2014, effective date assigned for the service-connected conditions. Id., Exhibit P. 

The petitioner testified at an RO hearing in March 2015. See Respondent's Mar. 15, 2019, 

Supplemental Brief, Exhibit D. 

On January 22, 2018, the day before the Court granted a motion to join Mr. Dolphin and 

other claimants as petitioners in this matter, the RO issued an SOC deciding 14 matters. 

January 14, 2019, Supplemental Brief, Exhibit M. The same day, a decision review officer granted 

(1) earlier effective dates for several claims, (2) increased ratings for several claims, (3) service 

connection for hearing loss and epilepsy, (4) TDIU, and (5) eligibility for dependents' educational 

assistance. Respondent's Mar. 15, 2019, Supplemental Brief, Exhibit E. On February 24, 2018, the 

petitioner filed a VA Form 9, appealing "the effective date for all of the conditions listed on my 

[SOC]"22 as well as the effective dates assigned for TDIU, hearing loss, and epilepsy. Petitioner's 

March 7, 2019, Notice to the Court, Exhibit E. He also requested a videoconference Board hearing. 

Id. On February 7, 2019, the Board notified the petitioner that his appeal had been certified. Id., 

Exhibit I. On September 25, 2019, the petitioner informed the Court that he had received an August 

7, 2019, letter from VA informing him that the Board had placed his appeal on its docket. 

Petitioner's Sept. 25, 2019, Solze Notice at 1. On October 2, 2019, the petitioner responded to a 

 

22 In the January 22, 2018, SOC the RO decreased the petitioner's disability rating for service-connected left 

lower extremity sciatica, effective April 1, 2016. He does not appear to have appealed this effective date. 
19

Court order explaining that he was withdrawing his hearing request "[i]n an effort to receive a 

decision as swiftly as possible." Petitioner's Oct. 2, 2019, Response at 1.

At oral argument, the Secretary conceded that VA did not know when the petitioner would 

receive a videoconference Board hearing. O.A. at 40:15-40:30. The only information provided 

was that as of the beginning of 2019, VA was conducting Board hearings for those claimants who 

filed a VA Form 9 in "late 2016." O.A. at 40:40-40:50. The Secretary agreed that it "will be a 

while" before Mr. Dolphin gets his hearing, and that it could take more than a year after the hearing 

to receive a decision. O.A. at 40:40-41:30. The Secretary defended this delay by stating that Mr. 

Dolphin "did not lose his place in line." O.A. at 41:00-41:30. 

The petitioners argue generally that a delay of 12 months or longer from NOD to Board 

decision is "conclusively unreasonable." Petitioner's Jan. 14, 2019, Supplemental Brief at 1 

(quoting In Re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) ("[A] 

reasonable time for agency action [even outside of the veterans' context] is typically counted in 

weeks or months, not years." (emphasis added)). However, I note that this categorical claim was 

made in the context of the putative class claim. As matters stand now, that class has not been 

certified. See Monk v. Wilkie, 30 Vet.App. 167 (2018) (en banc) (Monk III). What remains for Mr. 

Dolphin is a claim that, for him, VA has unreasonably (or unconstitutionally) delayed the 

adjudication of his claims.

In Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018), the Federal Circuit instructed this 

Court to apply the factors set forth in Telecommunications Research & Action Center v. FCC

(TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984) in determining whether to grant a petition alleging 

agency delay. Despite this holding, the petitioner contends that the Court's application of the TRAC

factors since Martin in nonprecedential decisions has created an insurmountable barrier for 

veterans who seek relief from the VA adjudicatory delay. Id. Mr. Dolphin asks that the Court 

hold that a delay of more than 4 years in his particular case warrants the issuance of a writ because 

all six TRAC factors favor granting a writ. Id. at 18-29.

The Secretary responds that the Court should reject adopting a broad rule finding that 1

year is an unreasonable amount of time for the Board to decide an appeal following an NOD. 

Secretary's Mar. 15, 2019, Response (Response). The Secretary contends that appellate delay was 

"caused by the structure of the VA legacy appeals system, development, non-ministerial tasks such 

as the preparation of SOCs and DRO review." Id. at 9. The Secretary argues that starting with a 

claimant's filing an NOD and ending with the Board issuing a decision comprises not one agency 

action, but is instead a series of agency and claimant actions, many of which are not merely 

ministerial. Id. at 20. The Secretary contends that the petition is a "broad programmatic attack" 

on the VA legacy appeals system and the relief requested is outside the limits of mandamus power. 

Id. at 23-24 (citing Norton v. S. Utah Wilderness All., 552 U.S. 55, 64 (2004)). Again, however, 

these arguments are directed to the class allegations in most respects. Specific to Mr. Dolphin, the 

Secretary argues that the "rule of reason" weighs against granting a writ for Mr. Dolphin. Response 

at 24. The Secretary notes that Mr. Dolphin initiated an appeal of 17 separate issues in his October 

2014 NOD. He then requested DRO review and his appeal was addressed in the order that it was 

received. Id. at 24. Fourteen of these matters were addressed by the RO in January 2018. See id.

The Secretary argues that VA has narrowed the appeal to 3 issues that remain on appeal and the 
20

petitioner has not identified any specific action the Agency undertook between the time the NOD 

was filed and the time the Board issued the decision that is the source of the delay. See id. 

II. Mr. Dolphin is entitled to the writ he seeks.

I generally agree with the majority's description of the law concerning how one judges 

whether a petitioner under the All Writs Act is entitled to relief when claiming unreasonable 

agency delay. See discussion ante at 11. For ease of reference I set forth the TRAC factors here but 

otherwise will not repeat the majority's discussion of the legal framework. The six TRAC factors 

are: 

(1) [T]he time agencies take to make decisions must be governed by a "rule of 

reason"; (2) where 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) delays that might 

be reasonable in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the effect of expediting 

delayed action on agency activities of a higher or competing priority; (5) the court 

should also take into account the nature and extent of the interests prejudiced by 

delay; and (6) the court need not "find any impropriety lurking behind agency 

lassitude in order to hold that agency action is unreasonably delayed."

750 F.2d at 80 (citations omitted). 

I believe the majority errs as a matter of law because it adopts a far too restrictive view of 

how the TRAC factors operate. I describe below how I believe the TRAC factors apply to Mr. 

Dolphin's VA journey.

A. First and Second Factors

In Martin, the Federal Circuit observed that the first TRAC factor, the "rule of reason," is 

in some circuits considered the most important factor. 891 F.3d at 1345 (citing In re A Cmty. 

Voice, 878 F.3d 779, 784 (9th Cir. 2017)). I agree that it is and would affirmatively hold that to be 

the case. In reviewing this factor, the Court must "look at the particular agency action for which 

unreasonable delay is alleged," id. at 1347, adding that "[i]t is reasonable that more complex and 

substantive agency actions take longer than purely ministerial ones." Id. at 1345-46. "The 'rule of 

reason' analysis may also consider whether the delays complained of are based on complete 

inaction by the VA, or whether the delays are due in part to VA's statutory duty to assist a claimant 

in developing his or her case." Id. at 1346. 

Significantly, the Federal Circuit recognized that "[t]his 'rule of reason' inquiry is best left 

to the discretion of the Veterans Court." Id. In exercising its discretion, I observe that Congress 

has not provided a timetable, under the second TRAC factor, or any other indication of the speed 

with which it expects VA to adjudicate cases that were part of the legacy system. See TRAC, 750 

F.2d at 80; see also Martin, 891 F.3d at 1345. But this absence of a mandated timeline for resolving 

claims does not mean that Congress was ambivalent about providing timely resolution of claims 

for those men and women who served the Nation. In other words, it may be the case that the 
21

absence of a mandated timeline requires more in the nature of a delay than might be necessary 

with a timeline. Whether that is true in the abstract does not absolve VA for the delay at issue here. 

Moreover, with the enactment of the Veterans Appeals Improvement and Modernization Act, it is 

reasonable to say that Congress has at the very least implicitly recognized that VA had not been 

acting fast enough to handle its growing caseload reflecting the claims of worthy veterans and 

other claimants. 

Without congressional guidance, the "rule of reason" is the most difficult factor for the 

Court to decide. As the Federal Circuit pointed out, mere delay may violate the "rule of reason" 

for one claimant in the legacy system, but the same delay may be reasonable for a different 

claimant depending on the procedural history. See Martin, 891 F.3d at 1346. The Federal Circuit 

is correct that the duty to assist can lead to longer and more unpredictable adjudication times. Yet, 

here, there is no suggestion that the duty to assist is the reason Mr. Dolphin is waiting an 

unspecified time to receive a Board decision. He is merely waiting his turn in the queue, a type of 

delay that is "particularly intolerable." See Godsey v. Wilkie, 31 Vet.App. 207, 228 (2019) (per 

curiam order) (citing Martin, 891 F.3d at 1346). Indeed, the Secretary's discussion of Mr. 

Dolphin's claim at oral argument seemed to confirm that Mr. Dolphin is simply standing in line, 

and a slow moving one at that. In other words, this is not a situation in which delay flows from 

what an agency is doing. Here, delay is the result of total inaction.

But concluding that an agency is doing nothing is most decidedly not necessary to finding 

that the rule of reason has been violated. And concluding that VA took some action can't be enough 

to say that the rule of reason is satisfied. As I note below, I believe the Court today implicitly 

adopts the erroneous legal rule that any action is sufficient to defend against a claim of 

unreasonable agency delay. 

Moving on, at oral argument, the Secretary was asked when delay would be unreasonable 

regardless of the reason. O.A. at 34:40-37:30. Although the Secretary refused to concede that a 

delay of even 100 years (that is, a century -- I did not add an extra zero) would meet this standard, 

the question of when delay becomes unreasonable must have some answer. "Otherwise the 

regulatory scheme Congress has crafted becomes anarchic." See MCI Telecomms. Corp. vs. Fed.

Comm'ns Comm'n, 627 F.2d 322, 325 (D.C. Cir. 1980). Where Congress has not provided a 

timetable or other indication of the speed which it expects the agency to proceed in the enabling 

statute, see TRAC, 750 F.2d at 80, logic dictates that either the agency or the judiciary must provide 

clarity for the sake of mitigating the damage caused by a broken appeals process. See generally, 

Martin, 891 F.3d at 1349-52 (Moore, J., concurring) (discussing the deficiencies in the current 

system of VA adjudication).

The lack of guidelines for legacy claimants has rendered the regulatory scheme for 

veteran's benefits anarchic. See MCI Telecomms. Corp., 627 F.2d at 322. Mr. Dolphin has no 

reasonable expectation as to when he might receive a Board decision. This continued delay must 

be considered in light of the fact that he filed his original claims more than 5 years ago. The 

majority views the rule of reason in terms of the 8 months Mr. Dolphin has been waiting for a 

Board hearing. I take a different view in looking at the longitudinal history of his claims over the 

4 years. 
22

By slicing and dicing Mr. Dolphin's journey, the majority makes it almost impossible to 

conceive of delay that would be unreasonable. But that approach is decidedly the wrong 

perspective. Imagine driving from Washington, D.C., to Anchorage, Alaska. Stated that way, it's 

a long time in the car. But if one looked at that journey in a series of 2-hour blocks, you might say 

the time in the car is not so bad. But that way of assessing the journey turns a blind eye to the 

reality of the experience of the person in the car. I don't believe we can ignore the reality of the 

time Mr. Dolphin has spent on his journey in his VA experience as much as we cannot say a trip 

in a car from the Nation's capital to Alaska was short. 

Furthermore, Congress has established a right to a hearing for veterans – something Mr. 

Dolphin sought. See 38 U.S.C. § 7107. The continued wait times for those hearings to occur places 

veterans in the unfortunate position of deciding between availing themselves of their right to a 

hearing and continuing to delay the adjudication of their claims or to forego that right in order to 

obtain a decision more quickly. Surely, Congress did not mean for the administrative process to 

obstruct the rights of veterans to be heard at a hearing. But that is precisely what has happened 

here: the threat of continued delay has forced Mr. Dolphin into foregoing his congressionally 

mandated right to a Board hearing in the hope that he will be stuck in the endless line he has 

experienced just a little less time to receive a Board decision. Surely, this situation cannot be 

reasonable.

I conclude that the "rule of reason" here weighs strongly in favor of granting Mr. Dolphin's

writ, and the lack of a congressionally mandated timetable does not cut against this conclusion.

B. Third and Fifth Factors

The Federal Circuit observed that the third and fifth TRAC factors often overlap. Martin, 

891 F.3d at 1346. I agree. The third factor was summarily resolved with the simple observation 

that "veterans' disability claims always involve human health and welfare." Id. (emphasis added). 

This is a significant observation because it puts at least some part of the metaphorical thumb on 

the veteran's side of the scale, something that appears to be appropriate in VA's pro-veteran, 

nonadversarial system.

Under the fifth factor, "the court considers the nature and extent of interests prejudiced by 

the delay." Id. at 1346. The fifth factor focuses on the individual veteran, and how dependent he 

(or she) is on disability benefits for basic necessities and a sustainable income. Id. at 1347. 

Mr. Dolphin is in receipt of TDIU benefits. See Mar. 7, 2019, Notice to the Court, Exhibit 

G. He therefore already receives VA compensation on a monthly basis based on his inability to 

work. Although the Secretary argues that this factor mitigates against the grant of a writ based on 

the petitioner's receipt of monthly compensation, the record does not contain enough information 

regarding the petitioner's financial circumstances for me to rule against the petitioner here. Mr. 

Dolphin's TDIU award was effective December 2, 2013, yet he has not worked since 2008. See 

id. Although he receives VA benefits, there is no information regarding any outstanding debt. It is 

thus unclear whether the petitioner's benefits qualify as a sustainable source of income. 

Additionally, the Court has previously rejected the notion that "any and all prejudice resulting from 

the decade's delay would be offset by retroactive payment should [VA] ultimately determine that 
23

benefits were warranted." Erspamer v. Derwinski, 1 Vet.App 3, 10 (1990). So, perhaps, this factor 

is a wash because of the absence of information. But that does not undermine Mr. Dolphin's claim 

because, as the majority recognizes, these are factors, not elements. See discussion ante at 11.

Given that the third factor favors all claimants and the fifth factor is indeterminate, I believe 

that the TRAC factors pertaining to the interest of the claimant weigh in favor of granting the 

petition, and no further financial information is necessary to determine whether a writ is warranted 

here. 

C. Fourth Factor

The fourth TRAC factor requires "consideration of the effect of expediting delayed action 

on agency activities of a higher or competing priority." Martin, 891 F.3d at 1347. This factor 

"allows the Veterans Court to consider the impact granting of mandamus in a particular appeal 

may have on other agency activities." Id. "VA may consider as one aspect of the overall TRAC 

analysis the fact that the VA has fixed resources and that the agency is in a better position than the 

courts to evaluate how to use those limited resources." Id. (citing In re Barr Labs., Inc. 930 F.2d72, 

76 (D.C. Cir. 1991)). 

I believe that the fourth factor does not counsel against issuing the writ. The Secretary 

relies heavily on the development of the new appeals system as evidence that VA now prioritizes 

shortening the backlog of cases at the Board. See O.A. at 46:00-47:00. The problem is that some 

of the oldest pending cases remain in the legacy system in the queue before the Board. Even if the 

line at the Board were to be shortened by claimants opting into VA's new appeals process, VA 

simply has not provided a path for the legacy cases that reduces unreasonable delay such as that 

which we have here. 

The majority argues forcefully that granting the petition would allow Mr. Dolphin to 

unjustly jump the line ahead of other claimants of competing priority. See discussion ante at 16. I 

concede that this may be the case in some sense. See Ebanks v. Shulkin, 877 F.3d 1037, 1040 (Fed. 

Cir. 2017). But I'm equally unclear how to assess this reality. If one assumes that VA has 

unreasonably delayed adjudicating Mr. Dolphin's claim, I'm not sure one can simply rely on the 

fact that he might "jump" the line to deny him relief. After all, that would seem to mean that an 

agency could avoid affording appropriate relief to one claimant by unreasonably delaying relief to 

everyone. It's for that reason that the Federal Circuit indicated that the class action would be the 

best way to address delay-based claims. See id. But this Court already denied class relief in this 

very case because it held that petitioners did not satisfy the commonality requirement. See Monk 

III, 30 Vet.App. at 175-81. To now turn around and use the fact that one needs to consider the 

effect on others as the majority does seems rather perverse. I don't see how one can have it both 

ways.

D. Sixth Factor

The sixth and final TRAC factor focuses on government impropriety. "Under this factor, 

the Veterans Court need not find 'any impropriety lurking behind agency lassitude' to hold that 

agency action is unreasonably delayed." Martin, 891 F.3d at 1348 (citing TRAC, 750 F.2d at 80). 
24

"A writ may be appropriate under the TRAC analysis even where there is no evidence of bad faith." 

Id. (citing In re A Cmty. Voice, 878 F.3d at 787). "[I]n the unlikely event that an individual could 

show that the VA 'singled [the individual] out for mistreatment,' such evidence would tend to favor 

issuance of the writ." Id. (quoting In re Barr Labs., Inc., 930 F.2d at 75).

I don't see any evidence of Government impropriety here. The Secretary's actions do not 

suggest bad faith on the part of the Government, merely an inability to fix the longstanding delays 

that exist in the legacy system. This factor does not weigh in favor of granting the writ.

E. Ultimate Writ Determination

Having weighed all six factors, I would hold that a writ is warranted here, especially based 

on the first, third, and fourth TRAC factors. The violation of the "rule of reason," together with the 

health and human welfare at stake, the interests of Mr. Dolphin and the nature of his claims, and 

VA's inability to provide any meaningful guidance for Board action weigh heavily in favor of 

granting a writ.23

III. Some Concluding Thoughts

Judge Moore of the Federal Circuit has written forcefully about the problems in VA's 

adjudication procedures. See id. 1349-52 (Moore, J., concurring). This case places a human face 

on Judge Moore's powerful critique. I fear that the majority's approach to assessing delay-based 

claims – now enshrined in an en banc opinion – makes illusory the right a veteran has to seek 

judicial intervention when VA delays in adjudicating his or her claim. Since the Federal Circuit 

decided Martin, the Court has granted only a single writ concerning delay. See Godsey, 31 

Vet.App. 207. Notably, that case – as important as it is – was limited to a situation where VA was 

taking no action at all. Id. My fear is that the Court today adopts sub silencio the legal rule that 

total inaction is required before the Court will intervene. That is an error of law in my view.

Congress unambiguously provided that this Court has the power to "compel action of the 

Secretary unlawfully withheld or unreasonably delayed." 38 U.S.C. § 7261(a)(2). After today's 

decision, I am not sure how meaningful that right is in practice. I respectfully dissent from the 

majority's decision to deny Mr. Dolphin's petition. 

PIETSCH, Judge, dissenting:

I am not certain that the Court presently has jurisdiction necessary to issue a dispositive 

order in this case. See George v. Wilkie, 2019 U.S. App. LEXIS 25498 (Fed. Cir. 2019) (a recent 

nonprecedential decision reminding us, yet again, to ensure that we have jurisdiction before 

proceeding even when jurisdiction is not argued in briefing). I am therefore compelled to dissent 

from this order without reaching the merits of the petitions before us.

 

23 Because I would grant a writ based on the TRAC analysis, I would not address petitioner's constitutional 

arguments under the Fifth Amendment's Due Process Clause. See Martin, 891 F.3d at 1349.
25

Congress created two paths for a litigant to appeal a matter decided by this Court to the 

Federal Circuit. In this case, the petitioners chose to appeal under 38 U.S.C. § 7292(a), and the 

Court allowed them to do so. In my view, that decision was improper, and it has led to insuperable 

jurisdictional complications that will not abate until the Federal Circuit takes action.

According to section 7292(a), an appellant may appeal a "decision" of this Court "by filing 

a notice of appeal" in a timely manner. Although this provision does not contain an express finality 

requirement, the Federal Circuit has concluded that section 7292(a) allows for an appeal only of 

final decisions of this Court except in the most limited of circumstances. Williams v. Principi, 

275 F.3d 1361, 1363 (Fed. Cir. 2002). Neither the petitioners nor the Court directly discusses 

those circumstances.

Pursuant to 38 U.S.C. § 7292(b)(1),

[w]hen a judge or panel of the Court of Appeals for Veterans Claims, in making an 

order not otherwise appealable under this section, determines that a controlling 

question of law is involved with respect to which there is a substantial ground for 

difference of opinion and that there is in fact a disagreement between the appellant 

and the Secretary with respect to that question of law and that the ultimate 

termination of the case may be materially advanced by the immediate consideration 

of that question, the judge or panel shall notify the chief judge of that determination. 

Upon receiving such a notification, the chief judge shall certify that such a question 

is presented, and any party to the case may then petition the Court of Appeals for 

the Federal Circuit to decide the question. The court may permit an interlocutory 

appeal to be taken on that question if such a petition is filed within 10 days after 

the certification by the chief judge of the Court of Appeals for Veterans Claims. 

Neither the application for, nor granting of, an appeal under this paragraph shall 

stay proceedings in the Court of Appeals for Veterans Claims, unless a stay is 

ordered by a judge of the Court of Appeals for Veterans Claims or by the Court of 

Appeals for the Federal Circuit.

As this provision makes clear, appeals of interlocutory orders must follow a certain 

procedure and proceed only if the Court allows. The appellate scheme that Congress put in place 

for this Court mirrors the scheme that applies to district courts. Section 7292(b)(1) is, in fact, a 

variation on, and borrows numerous passages from, 28 U.S.C. § 1292(b), which applies to 

"[i]nterlocutory decisions" issued in a "civil action" by a district court. See Bonhomme v. 

Nicholson, 22 Vet.App. 317, 319 (2007) (recognizing that section 7292(b) "is taken almost 

verbatim" from section 1292(b)). Section 1291 is the rough equivalent of our section 7292(a). 

The U.S. Supreme Court has made clear for decades and recently reaffirmed that orders 

denying class certification "are 'inherently interlocutory,' . . . hence not immediately reviewable 

under [section] 1291." Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1706 (2017) (quoting Coopers 

& Lybrand v. Livesay, 437 U.S. 463, 470 (1978)). Based on that holding, allowing an appeal of a 

class certification order under section 7292(a) to proceed is, at best, legally dubious.
26

More importantly, the Supreme Court has explicitly refused to allow application of the socalled collateral-order doctrine discussed in Cerullo v. Derwinski, 1 Vet.App. 97 (1991) and 

adopted by the Court in this order via Sumner v. Principi, 15 Vet.App. 405 (2002) (en banc) (a 

two-paragraph order that relies on Cerullo without discussing it) in the class context. The Supreme 

Court noted in Microsoft that "Coopers and Lybrand . . . rejected the collateral-order doctrine as a 

basis for invoking [28 U.S.C. §] 1291 to appeal an order denying class certification." 137 S. Ct. 

at 1708 n.3. It further noted that the "collateral-order doctrine applies only to a 'small class' of 

decisions that are conclusive, that resolve important issues 'completely separate from the merits,' 

and that are 'effectively unreviewable on appeal from final judgment.' . . . An order concerning 

class certification, we explained, fails each of these criteria." Id. (quoting Coopers & Lybrand, 

437 U.S. at 468). It seems in this order the Court is acting against Supreme Court precedent by 

using a doctrine that does not apply to an order denying class certification to forgive the petitioners' 

decision to appeal under an inappropriate provision and avoid the consequences of its decision to 

process that appeal rather than return it.

Rule 23(f) was created to provide class certification orders a path to appellate review easier 

than the path other interlocutory orders must follow; to allow the appellate court to have a say in 

whether to review the certification question; and to alleviate the harsh results caused by Coopers 

& Lybrand. Microsoft, 137 S. Ct. at 1708-09. That rule, however, does not presently apply to this 

Court except, apparently, by judicial fiat in individual cases, as this order shows. Even if it did, 

the petitioners plainly did not file a Rule 23(f) petition. (The petitioners' Notice of Appeal is a 

single-sentence document that demands an appeal without establishing the right to appeal, citing 

to the appropriate (or any) statute or rule, or asking for permission to appeal.)

Because Rule 23(f) does not presently apply, to obtain review of the Court's decision 

denying class certification, the Court and petitioners should have followed the procedure set forth 

in section 7292(b)(1). Furthermore, even if Rule 23(f) does apply, the petitioners did not follow 

the procedure set forth in that provision. Once again, we should have immediately returned the 

Notice of Appeal to them. We allowed it to proceed, however, which was a mistake. That has led 

to convoluted arguments that mesh section 7292(a), section 7292(b)(1), and Rule 23(f) without 

respecting their individual purposes, deadlines, and bailiwicks. 

Ironically, if we had ensured that the petitioners properly followed the procedure set forth 

in section 7292(b)(1), we would now have jurisdiction to proceed. The Federal Circuit has not 

issued a stay order and neither have we. However, because we improperly allowed the appeal 

under section 7292(a), this case is, as far as I am concerned, in jurisdictional limbo. I cannot be 

certain where jurisdiction currently lies, I am not willing to adopt a Federal Circuit decision that 

lacks a searching jurisdictional review to smooth over the difficulty, and I fear that the Court is 

directly contravening the procedure that Congress put into place and Supreme Court precedent. 

In what is now a growing list of dissents, I have repeatedly registered my concern about

the ad hoc manner in which the Court has handled class certification cases and the legally 

problematic decisions that inevitably attend such haste. I'm afraid that I must add this decision to 

that list. Because I cannot be sure that I have jurisdiction to proceed, I will not, and I must 

respectfully dissent. Also, because I cannot proceed, I take no position concerning any findings 

that the majority makes beyond its conclusion establishing jurisdiction.