Welcome to a special edition of the eBulletin
In honor of Canada Day and Independence Day, please find a special edition of the eBulletin highlighting the work Fellows have done for U.S. veterans.
The College's efforts on behalf of Veterans
For the last 12 years, the College has been trying to rectify onerous delays veterans face when they appeal the Veteran Administration’s denial of veterans’ disability claims—delays caused by the VA’s byzantine, opaque, and unyielding disability benefits system. The College’s efforts have finally started to produce results through litigation that Fellows, with the support of the College, initiated in 2016.  While we have not yet won the war, we have won a significant battle.   
Veterans are entitled to disability benefits from the Veterans Administration when they have been injured during their military service.  Often, veterans and their families need these benefits to pay for food, clothing, and shelter. Yet, when veterans’ disability benefit claims are denied and veterans appeal those denials, veterans are forced to wait on average six to seven years before they receive a decision on their appeals.  More often than not, when those appeals are ultimately decided, the original benefit denials are found to contain errors that result in reversal or remand for the veterans to start the process again.
The College first became involved in addressing the delays veterans face in their disability benefit appeals in 2007, when Fellow Dick Rosenbleeth asked David Beck, who was then President of the College to address the problem.  In 2007, the war in Afghanistan was six years old and the war in Iraq was four years old.  David had represented veterans pro bono and, after he and Dick talked, David agreed the College would help. Dick had served in the reserves and had a cousin who headed an organization assisting veterans. In addition to his military background, Dick had experience in addressing the four- or five-year delays in getting cases to trial in Philadelphia. To alleviate that delay, the Philadelphia bar used volunteer lawyers as mediators, arbitrators, and pro tem judges.  Dick decided to try that same approach with the VA. David and Dick spoke with the Chair of the Board of Veterans Appeals and made a proposal but it was rejected out of hand.
Dick eventually succeeded in getting the VA to approve a model project in D.C. using volunteer mediators from the College to resolve the backlog. But this project was torpedoed when a powerful Veterans Service Organization (VSO), whose job it is to represent veterans in dealing with the VA, said that mediation sounded like “let’s make a deal” and was unfair to veterans. According to this VSO, the VA should just do its job. The VA, however, did not do its job and the delays plaguing veterans’ appeals grew even longer. Dick continued without success his efforts with the House and Senate Veterans Affairs Committees to have the pilot project approved.In 2013, President Chilton Varner, at David and Dick’s request, asked incoming President Bob Byman to have the College’s Special Problems in the Administration of Justice (U.S.) Committee address the lengthening delays. Dick Rosenbleeth, Denny Shupe, and John Chandler started exploring remedies. We first met with the Board of Veterans Appeals (BVA), the agency that makes the first appellate decision when veterans appeal the denial of disability benefits.  The BVA is also the source of one-and-a-half to two years of the delay veterans experience in their appeals. Through those meetings with the BVA, we learned that part of the delay at the BVA was due to the BVA needing a written analysis of the issues before the BVA considered an appeal. We offered Fellows to serve as pro bono “law clerks” to provide that analysis but the BVA ultimately decided that it was not authorized to use volunteer lawyers.  
The BVA instead asked us to help the VSOs that were supposed to provide the written analyses in the cases in which the VSOs represented veterans. Through Dick Rosenbleeth, we met with The American Legion which, we were told, represented veterans in 20% of the appeals. Some of the American Legion’s leadership was enthusiastic about using our volunteers to help it analyze the pending appeals since the American Legion had only 13 lawyers on staff whose job this was. But, after a number of meetings with the American Legion, our contact there left, the paid leadership of the Legion changed, and we essentially had to start over. After two years of meetings, the American Legion agreed on a pilot project that required the College volunteers to be American Legion members, to take a $150 online course in VA procedures, and to pass a test on those procedures. Ten of us, including Denny Shupe and John Gilligan, then co-Chair of the Access to Justice and Legal Services Committee , joined the American Legion, took the course, and passed the test. The American Legion promised to send cases to the 10 of us through a secure Citrix application but never did so and our efforts came to naught.
In the meantime, Senator Johnny Isakson of Georgia became Chair of the Senate Veterans Affairs Committee.  By this time, the delays veterans were experiencing in their appeals had worsened and the appeals backlog was 400,000. Fellow Dwight Davis arranged for us to meet with Senator Isakson, who was concerned about the delays and interested in working with us. We proposed legislation authorizing voluntary arbitration of appeals that had been pending more than a year and said the College would provide as many neutral arbitrators as needed to resolve those disputes. Senator Isakson sent us to the Senate Veterans Affairs Committee’ general counsel, who expressed interest but thought it was illegal for private individuals to award government money. King & Spalding prepared a legal analysis showing that the College’s proposal was constitutional and appropriate. That analysis drew heavily on the authorization for the work of the 9/11 Commission, through which Kenneth Feinberg was authorized to pay victims’ families. The general counsel, however, then concluded that the College’s proposal would not work because the VA could not spare people to attend arbitrations to defend each of the VA’s decisions. The proposal faltered. Ultimately, in 2018, Congress enacted legislation fast-tracking new appeals starting in 2019; that legislation does not help most of the 470,000 pending appeals and addresses only the first two years of delay, doing nothing to fix the next four years of delay veterans typically encounter.  
The Committed contacted the leadership of other veteran service organizations, including those that had been born more recently after the wars in Iraq and Afghanistan. Despite multiple discussions during which some interest was shown in the committee’s arbitration proposal, no other VSO would publicly support the proposed reforms.  We also held informal discussions with organizations such as the AAA (American Arbitration Association), and while volunteer assistance was positively received, without the public support of VSOs we were unable to get traction in Congress for our ADR proposals.
In 2016, with the College having exhausted non-litigation avenues, then-President Mike Smith declared that we needed to sue some body to fix the delay problem. Mike assembled a litigation team of Fellows Steve Raber (Williams & Connolly) and John Chandler and Beth Tanis (King & Spalding).   
Suing the VA to challenge delays presents unique legal challenges, starting with what court can hear that challenge.  The VA has successfully argued in federal circuit courts that, except in rare circumstances, the Court of Appeals for Veterans Claims (Veterans Court), an Article I court, is the only court in which such a challenge to VA delay can be brought. The Veterans Court’s main function is to decide appeals from BVA decisions on veterans’ appeals of benefit denials but the Veterans Court also has the authority to issue writs of mandamus for VA action “unreasonably…delayed.”
In July 2016, we filed individual mandamus petitions on behalf of 17 veterans who were referred to us by veterans’ law clinics at Emory University Law School and William & Mary Law School, and by other organizations.  At the time we filed suit, the Veterans Court did not permit representative actions or class actions (a limitation later overturned by the efforts of the Yale Law School clinic).   To streamline our petitions, we asked the Veterans Court to consolidate them but the Veterans Court refused to do so. As a result, every judge on the Veterans Court was assigned one or more of our petitions. 

Our petitions asked the Veterans Court to issue writs of mandamus ordering the BVA to issue decisions in the petitioners’ underlying benefits appeals because the delays violated both the petitioners’ Due Process rights and the governing statutes requiring the VA to act without unreasonable delay.  Writs of mandamus based on unreasonable delay have been especially difficult to obtain in the Veterans Court. Since 1999, the Veterans Court has applied a unique legal standard—called the  Costanza  standard—to determine whether a writ of mandamus should issue when unreasonable delay by the VA is alleged.   Costanza v. West , 12 Vet. App. 133 (1999) (per curiam). While other courts routinely apply to federal agencies a mandamus standard—called the  TRAC  standard—that considers the interests of both the petitioner and the federal agency, Telecommms. Research & Action Ctr. v. FCC , 750 F.2d 70, 76 (D.C. Cir. 1984), the  Costanza  standard considers only the interests of the VA and requires the veteran to demonstrate that the VA has “arbitrarily refused to act.”   
Demonstrating that the VA has “arbitrarily refused to act” is an uphill battle. The Veterans Court has truncated procedures that do not allow veterans to explore the basis for the VA’s delays, much less demonstrate that the delays were due to an “arbitrary refusal to act.” The Veterans Court has no set motion practice, no discovery, and no evidentiary hearings. In some of our cases, the Court even refused to let us respond to the VA’s filing in opposition to our petitions.
In addition, the VA has had great success in warding off mandamus challenges by simply taking minimal action on the veteran’s underlying benefit denial appeal—action the VA then argues is proof that the VA has not “arbitrarily refused to act.”  This ploy has a long history of success in the Veterans Court and the VA used it to defeat some of our petitions as well. 
The  Costanza  standard is so onerous that, in the 20 years it has been applied, no veteran has succeeded in obtaining a writ of mandamus based on unreasonable delay. In our petitions, we argued that the  Costanza  standard should not be applied and that the Veterans Court instead should apply the  TRAC  standard used by other courts when assessing federal agency delay. 
After we filed the petitions, the VA engaged in another of its favorite ploys: it gave some of our petitioners the disability benefits they were seeking in their underlying appeals so that those appeals (and thus their mandamus petitions) were moot.  Two more of our petitions were rendered moot by the death of the petitioners.
Each of our petitions that had not been rendered moot was denied. In decisions of three pages or fewer, the Veterans Court either rejected or refused to consider our Due Process arguments.  Nor did the Court address whether it should apply the  TRAC  standard instead of the  Costanza  standard. Instead, the Veterans Court applied the  Costanza  standard, either expressly or in spirit, to conclude that mandamus was not warranted.  
We appealed the denials to the Court of Appeals for the Federal Circuit. The cases were argued on April 30, 2018 and, on June 7, 2018, the court reversed the denial of the petitions and remanded the cases to the Veterans Court.   The Court of Appeals rejected the  Costanza  standard and directed the Veterans Court to apply the  TRAC  standard used by other Courts of Appeal to assess agency delay. Particularly rewarding was this excerpt from Judge Kimberly A. Moore’s concurring opinion:  
The men and women in these cases protected this country and the freedoms we hold dear; they were disabled in the service of their country; the least we can do is properly resolve their disability claims so that they have the food and shelter necessary for survival. It takes on average six and a half years for a veteran to challenge a VBA determination and get a decision on remand. God help this nation if it took that long for these brave men and women to answer the call to serve and protect. We owe them more.
Martin v. O’Rourke, __ F.3d __ (Fed. Cir. 2018).  Judge Moore also concluded that, “Under the correct mandamus standard which we adopt today, veterans should have a much easier time forcing VA action through the mechanism of mandamus.” Id.  
On remand, we will renew our arguments that the delays violate  TRAC  and violate the Due Process Clause. Our clients will now have their delay claims decided by the Veterans Court under the proper legal standard. We are hopeful that they will receive fair treatment. 
The appeals have been handled by lawyers from Williams & Connolly and King & Spalding. At Williams & Connolly, the principal lawyers are Fellow Steve Raber, Liam Montgomery and Luke McCloud. King & Spalding Fellows John Chandler and Beth Tanis have been assisted by Drew Dropkin and Chris Healey.         
1300 Dove Street, Suite 150
Newport Beach, California 92660
Phone: (949) 752-1801 • Fax: (949) 752-1674
Copyright © 2017 American College of Trial Lawyers, All rights reserved.