On June 7, the United States Court of Appeals for the Federal Circuit ruled in favor of a group of veterans represented by Williams & Connolly.  The veterans sought relief from the extraordinary delays they have suffered in waiting for their disability benefits appeals to be adjudicated.  Accepting the firm’s arguments, the Court abolished the mandamus standard that the Veteran’s Court has applied since 1999—an insurmountable standard under which no veteran ever has prevailed because it requires the veteran to show that the delay amounts to an “arbitrary refusal to act” by the VA.  The Court adopted the D.C. Circuit’s TRAC mandamus standard for evaluating agency delay (which uses a six-factor test that would allow the court to consider the veterans’ interests and the nature of the delay, among other things).  According to Judge Kimberly A. Moore, who wrote a concurring opinion:  “Under the correct mandamus standard which we adopt today, veterans should have a much easier time forcing VA action through the mechanism of mandamus.”

In her concurring opinion, Judge Moore concluded as follows:

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.

Williams & Connolly lawyers who worked on this matter were Stephen D. Raber, Thomas G. Hentoff, Liam J. Montgomery, and Luke McCloud.  The case is captioned Martin v. O’Rourke, Case No. 17-1747 (Fed. Cir. June 7, 2018).