Vietnam Veterans of America v. Shinseki

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2010 Decided March 19, 2010

No. 09-5260

VIETNAM VETERANS OF AMERICA AND VETERANS OF
MODERN WARFARE,
APPELLANTS

v.

ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF THE DEPARTMENT OF VETERANS AFFAIRS,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01934-RBW)

Robert E. Cattanach argued the cause for appellants. With
him on the briefs were Frederick G. Jauss IV and Creighton R.
Magid.

Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
was William G. Kanter, Attorney. R. Craig Lawrence, Assistant
U.S. Attorney, and Ronald J. Wiltsie II, Attorney, entered
appearances.
 2

Before: GINSBURG and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

SILBERMAN, Senior Circuit Judge: Appellants are two
veterans associations appealing the district court’s dismissal of
their suit alleging that the Department of Veterans Affairs
violated the APA and the Constitution (due process clause)
because of the average time it takes the VA to process veterans’
claims. The district court held that it lacked jurisdiction and we
agree, although for somewhat different reasons.

I

Congress has created a number of programs that provide
monetary benefits to America’s veterans and their families. One
of the largest such programs provides disability benefits to
veterans for service-related injury or disease. Approximately
3.4 million veterans currently receive disability benefits from
the VA.

Veterans who seek disability benefits must file a claim with
the VA at one of its 57 regional offices throughout the country.
The VA is required by statute to assist veterans in developing
evidence to support their claims.1 The VA inter alia arranges
for and provides medical examinations when necessary, seeks
all government records relevant to a claim (such as military
service records and treatment records from VA medical
facilities), and makes reasonable efforts to acquire non-federal
records identified by the veteran. Once all relevant evidence has
been gathered, a VA “rating specialist” evaluates the claim.

1
See 38 U.S.C. § 5103, et seq.
 3

This process is informal and non-adversarial. See Walters v.
Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 309-10
(1985). The rating specialist first determines whether the
disability is connected to eligible service, and if so, determines
a percent disability rating, a figure that, along with a statutory
schedule, determines the amount of assistance to which the
veteran is entitled. The VA issues award letters to veterans
entitled to compensation and informs veterans whose claims are
denied of the reasons for their denial.

Veterans who wish to contest this initial decision may do
so. They may (but are not required to) elect to have their claim
reviewed by a more senior rating specialist within the regional
office where the claim was initially adjudicated and, if still
dissatisfied, they may appeal to the Board of Veterans’ Appeals.
The Board, led by a chairman responsible to the Secretary of the
VA, conducts de novo review of presented claims. While the
Board only decides appeals after a claimant has been given the
opportunity for a hearing, these proceedings are also quite
informal. See id. at 310-11. Adverse decisions by the Board
can subsequently be appealed exclusively to the United States
Court of Appeals for Veterans Claims (“CAVC”), an
independent Article I federal court. The CAVC may review all
legal issues, including constitutional claims, and, notably, has
the power to “compel action of the Secretary unlawfully
withheld or unreasonably delayed.” Decisions of the CAVC
may be appealed to the United States Court of Appeals for the
Federal Circuit which has authority to “decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.”2 Further review, of course, may be sought
in the United States Supreme Court.

2
38 U.S.C. § 7261(a); id. at § 7292(d)(1).
 4

Congress has divested other federal courts of authority to
review certain decisions relating to benefits. Thus, 38 U.S.C. §
511 provides that, “[t]he Secretary shall decide all questions of
law and fact necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary to veterans
or the dependents or survivors of veterans,” but, subject to a few
carefully defined exceptions (including the appeals process
outlined above), “the decision of the Secretary as to any such
question shall be final and conclusive and may not be reviewed
by any other official or by any court, whether by an action in the
nature of mandamus or otherwise.” Congress, moreover,
specified that challenges to VA regulations may only be brought
in the Federal Circuit.

Over the last several years, various entities including the
Government Accountability Office, veterans service
organizations, and congressional committees have raised
concerns regarding the timeliness with which the VA system
processes claims for benefits. In a 2005 report to the Senate
Committee on Veterans’ Affairs, the GAO noted “large numbers
of pending claims and lengthy processing times” in the VA’s
disability program, and subsequent GAO testimony to a House
of Representatives subcommittee indicated that the VA’s
inventory of pending claims and their average time pending had
increased “significantly” over the previous 3 years.3

3
U.S. Gen. Accountability Office, GAO-05-749T, Claims
Processing Problems Persist and Major Performance Improvements
May Be Difficult, 3 (2005); U.S. Gen. Accountability Office, GAO-
07-562T, Processing of Claims Continues to Present Challenges 3
(2007).
 5

Congress has taken some steps to speed up the claim
processing. In 2007, for example, Congress provided funding
to the VA to hire an additional 3,100 employees, the vast
majority of which were hired into the division responsible for
processing disability claims. Congress also recently enacted a
law requiring that the VA establish a pilot program in 10 of its
regional offices under which fully developed disability claims
(a subset of claims where no additional evidence need be
collected) are adjudicated within 90 days.4 Congress has not,
however, enacted any statutory deadlines that would require the
VA to adjudicate all disability claims within a definite time
period.

Unsatisfied with these measures, two advocacy groups for
veterans, Vietnam Veterans of America and Veterans for
Modern Warfare filed a complaint which alleged that the VA
was in violation of the Administrative Procedure Act and the
Due Process Clause of the Constitution (as well as federal
statutes that require the VA to provide “expeditious treatment”
to claims that are remanded from the CAVC to the VA, see 38
U.S.C. § 7112, and from the Board back to the VA regional
office, see id. at § 5109B) because it generally takes too long for
a veteran to get relief. The plaintiffs sought a declaratory
judgment as well as an injunction requiring the VA to issue “an
initial decision on every veteran’s claim for benefits within 90
days” and to “ensure that appeals of claims decisions are
resolved within 180 days.”

The complaint seeks a ruling that the VA’s entire disability
benefits processing system is illegal. It does not suggest the time

4
See Veterans’ Benefits Improvement Act of 2008, Pub. L. 110-
389, 122 Stat. 4145 (Oct. 10, 2008).
 6

the VA has taken to adjudicate the claim of any single veteran
is unreasonably long, but rather alleges that the average time the
VA has taken to reach initial decisions at the regional office
stage, the average time the Board takes to resolve appeals, and
the average time it takes the regional offices to resolve claims
remanded by the Board are all unreasonably long. The
plaintiffs, moreover, actually disavow any intention of seeking
relief in any individual claim by stating, “[t]o the extent any of
the facts presented herein apply to individuals rather than to
veterans as a whole, they are intended for illustrative purposes
only. Nothing in this complaint is intended as, nor should it be
construed as, an attempt to obtain review of an individual
determination by the VA or its appellate system.”

The district court denied the plaintiffs’ motion for a
preliminary injunction and, in a published order, granted the
VA’s motion to dismiss on the grounds that plaintiffs lacked
standing because they sought to impose on the VA a “uniform
timeline for assessing these claims even though the claims are
not monolithic.” And the court stated that the plaintiffs were not
“likely to have the injuries redressed by a favorable decision due
to the plaintiffs’ failure to state a claim with respect to a
violation of the APA or the Due Process Clause.” (emphasis
added).

II

Appellants contend that the district court conflated the
merits of the case with standing. We agree. Whether or not
plaintiffs stated a claim – whether they had a cause of action –
goes to the merits of the case and, as we have held, the merits
must be assumed when considering standing. City of Waukesha
v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (per curiam). That
is not what is meant by redressability – the element of standing
 7

that is virtually always merely the reciprocal of causation.
Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017
(D.C. Cir. 1997). As a separate element, it is implicated only
when the court’s power to redress an injury caused by an illegal
act is independently impaired. Renal Physicians Ass’n v. HHS,
489 F.3d 1267, 1278 (D.C. Cir. 2007).

But the government raises other jurisdictional arguments.
Perhaps most prominent is its contention that § 511 precludes
district court (and our) jurisdiction because appellants are
essentially challenging the Secretary’s conclusions of “law and
fact necessary to a [benefits] decision.” Appellants respond that
they are not challenging the Secretary’s actual decision in any
case, but rather his failure to decide cases in a timely manner.
Yet, one might think that inherent in any adjudicatory
decisionmaking process is an implicit determination as to when
the decision maker will get to the case. And in this situation we
are not dealing with a true judicial-like role, but rather
institutional decisionmaking by a huge department, implicating
resource allocation and management practices in which
necessarily the pace of decisionmaking would have had to be
addressed. Whether looking at an individual case or a mass of
cases, a decision or decisions as to when to issue opinions would
appear to be a preliminary decision necessary to a final decision
– and although more precisely an administrative determination,
it would seem to be covered by the broad cloak “law and fact”
phrase of § 511.

The government points to two of our cases in support, Price
v. United States, 228 F.3d 420 (D.C. Cir. 2000) (per curiam) and
Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005). In Thomas,
a veteran claimed the VA had failed to provide him medical
benefits to which he was entitled. But the VA had decided he
was not entitled to those benefits, so clearly he was seeking to
 8

challenge a decision of the Secretary. Id. at 975. In Price,
however, another case involving a claim for medical benefits,
we noted that “[t]he record does not reflect whether Price
pursued a formal reimbursement claim with the VA.
Nevertheless, because Price is challenging the VA’s action or
inaction with respect to a veterans’ benefits matter, the district
court lacked subject matter jurisdiction over the complaint.”
228 F.3d at 421 (emphasis added). We stated broadly then, and
repeated in Thomas, that § 511 barred a suit that challenged
whether the VA “acted properly” in making a benefit
determination. Id.; 394 F.3d at 975. That formulation would
appear to foreclose appellants’ recourse to our court.

Appellants, however, point to another case of ours, Broudy
v. Mather, 460 F.3d 106 (D.C. Cir. 2006), which seems to
support their position. In Broudy, we held that § 511 did not bar
a suit in our district court by veterans whose claim was that
officials at the Department of Defense and the VA had provided
faulty information concerning the plaintiffs’ alleged exposure to
radiation while serving in Japan – the true information was
allegedly “covered up” – and, as a result, the plaintiff’s benefits
had been denied. Id. at 109-10. We distinguished Price and
Thomas as cases in which the VA (the Secretary) had actually
made decisions that the plaintiff veterans were not entitled to
benefits and the plaintiffs were seeking a review of those
decisions, whereas in Broudy, the “Secretary” (really the Board)
never made a decision on the issues presented by the plaintiffs
– whether officials subordinate to the Secretary had covered up
relevant data – because that precise issue had not been presented
to the Secretary (the Board). We indicated that only questions
“explicitly considered” by the Secretary would be barred by
§ 511, not questions he could be “deemed to have decided” or,
presumably, implicitly decided. Id. at 114 (emphasis added).
Appellants urge that neither the Secretary or the Board has
 9

explicitly considered whether the delays alleged in this case
violate the law and so their claims are not precluded.5

Undeniably, as the government suggested, there is tension
between Price and Thomas on the one hand and Broudy on the
other – particularly in light of our recognition in Price that the
record did not even indicate whether the plaintiff had actually
brought his reimbursement claim. (Moreover, as an added point
in the government’s favor, we note that § 511 expressly
precludes a mandamus action – the common law writ designed
to deal with unreasonable delay.) We need not seek to resolve
the tension between our cases, however, because we perceive
another jurisdictional ground upon which we may more
comfortably rely.

The government contends that a second jurisdictional defect
undermines appellant’s case – that APA Section 704 precludes
the suit because that section authorizes review only if a party
lacks an adequate remedy, and as the government contends, any
veteran can bring an unreasonable delay action in the CAVC.
Both the Sixth and Eighth Circuits have denied veterans claims
on just this basis. See, e.g., Beamon v. Brown, 125 F.3d 965,
967-70 (6th Cir. 1997); In re Russell, 155 F.3d 1012, 1013 (8th
Cir. 1998) (per curiam). Indeed, this conclusion – whether or
not jurisdictional (the Sixth Circuit thought it was) – appears to
be unassailable as the CAVC possesses the exact same authority
to deal with excessive delay in its statute that district courts have

5
In reaching this conclusion we relied on the Federal Circuit’s
opinion in Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000).
 10

under the APA. Compare 38 U.S.C. § 7261(a)(2) with 5 U.S.C.
§ 706(1).6

To be sure, the question of whether the plaintiffs could have
pursued individual due process claims on behalf of their
members is somewhat different. Still a claim that a plaintiff has
been denied due process because of delayed agency action is
essentially no different than an unreasonable delay claim;
indeed, if there is any difference at all, it is that an unreasonable
delay claim would likely be triggered prior to a delay becoming
so prolonged that it qualifies as a constitutional deprivation of
property. See Schroeder v. City of Chicago, 927 F.2d 957, 960
(7th Cir. 1991) (explaining that a due process claim premised on
delay occurs when “delay . . . ripen[s] into deprivation”). For

6
In response to questions raised at oral argument, plaintiffs
submitted a Rule 28(j) letter in which they contended that the CAVC’s
authority to compel unreasonably delayed VA action would not be an
adequate alternative remedy even for claims brought by individual
veterans. Plaintiffs argue that because the CAVC only has jurisdiction
of final decisions by the Board of Veterans’ Appeals, the CAVC is
powerless to order the VA to act when the veteran is still waiting for
a decision. But the CAVC has power to issue writs of mandamus
compelling VA officials to take action that has been unreasonably
delayed even if there has been no final decision by the Board. See,
e.g., Erspamer v. Derwinski, 1 Vet. App. 3, 6-9 (Ct. Vet. App. 1990).
And it can hardly be contended that the CAVC’s power to compel
delayed action through mandamus is an inadequate alternative to a
district court’s power to compel delayed agency action under the APA
– the standards for obtaining relief are essentially the same. See In re
Core Communications Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (“The
central question in evaluating a claim of unreasonable delay [under the
APA] is whether the agency’s delay is so egregious as to warrant
mandamus.”) (quotation omitted).
 11

much the same reasons that courts do not tolerate litigants’ artful
attempts to avoid the Court of Federal Claims by phrasing
complaints as seeking injunctive relief when a money judgment
would provide an adequate remedy, see Consolidated Edison v.
U.S. Dep’t of Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001)
(collecting cases), it seems unlikely plaintiffs would be
permitted to pursue due process claims in district court that are
no different (they may be even more difficult to establish) than
unreasonable delay claims that must be brought in the CAVC.

If plaintiffs were able to circumvent the CAVC’s
jurisdiction by creative pleading, district courts would be forced
to issue unnecessary constitutional decisions when a statutory
ground for the decision would do. Plaintiffs would be able to
seek the same exact relief in multiple fora – bringing the due
process claim in the district court and the unreasonable delay
claim in the CAVC – despite the general rule proscribing the
splitting of a cause of action. See, e.g., Wilson v. Johns-
Manville Sales Corp., 684 F.2d 111, 117 (D.C. Cir. 1982).
Absent some indication Congress intended such a strange result,
we think it doubtful it should be sanctioned. As we recognized
in Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1507
& n.119 (D.C. Cir. 1990), the “rule proscribing the splitting of
an indivisible cause of action” is one of several rules “designed
to minimize expense and inconvenience to litigants and conserve
the finite resources of the courts,” and that “[a]bsent plain
statutory language or convincing indication to the contrary”
federal courts should not presume Congress wished to uproot
such principles. See also Doleman v. Levine, 295 U.S. 221, 226
(1935) (“But the [statute] does not purport to split the cause of
action. A purpose to do violence to the firmly grounded tradition
of the unity of a cause of action at law, by casting on the
defendant the burden of defending two suits, is hardly to be
implied.”). Thus assuming an APA claim based on
 12

unreasonable delay must be brought in the CAVC, we think it
virtually inevitable that it would be held that the CAVC has
exclusive jurisdiction to hear due process claims premised on
the same delay.7

Our discussion of this issue is tentative, however, because
again we encounter some conflict in our own opinions – this
time as to whether the APA’s reviewability provision (§ 704) is
jurisdictional and, therefore, whether it is properly considered
anterior to any merits questions. In a line of our cases stretching
from the 1980s to 2005, we repeatedly stated – and held – that
the APA’s reviewability provisions were jurisdictional.8 We did

7
Nor do we think Webster v. Doe, 486 U.S. 592 (1988) requires
that the district court remain open to the constitutional claim. In that
case, a former CIA employee alleged that he was fired because he was
a homosexual and that this violated the Administrative Procedure Act
and the Constitution. The Supreme Court held that although he could
not obtain judicial review under the APA because such decisions were
committed to the agency's discretion by law, id. at 600-01, a court
could review constitutional claims based on the same allegation. The
court explained that without a clear statement from Congress that it
intended to do so, the Court would avoid the “serious constitutional
question that would arise if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim.” Id. at 603.
That constitutional question avoided by the Court in Doe would not be
a factor here – even if review of the due process claim is not available
in the district court, the CAVC could still hear it (as well as the
essentially identical unreasonable delay claim). See Beamon, 125 F.3d
at 969.
8
See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 746 (D.C. Cir.
1987) (opinion of Williams, J.); Public Citizen v. Office of the U.S.
Trade Reps., 970 F.2d 916, 918 (D.C. Cir. 1992); DRG Funding Corp.
v. Sec’y of HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996); Indep.
 13

so notwithstanding a footnote in a Supreme Court opinion, Air
Courier Conference v. Am. Postal Workers Union, 498 U.S. 517,
523 n.3 (1991), observing that the judicial review provisions of
the APA are not jurisdictional.9

Nevertheless, in 2006, we changed course in Center for
Auto Safety v. NHTSA, 452 F.3d 798, 805 (D.C. Cir. 2006),
followed a month later by Trudeau v. FTC, 456 F.3d 178 (D.C.
Cir. 2006).10 In both cases we relied on a party’s argument in a
previous case, Reliable Automatic Sprinkler v. Consumer Prod.
Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003), in which
we actually declined to resolve the issue. And in Trudeau, we
referred to our previous line of cases as only “loosely” referring
to the APA’s review provision as jurisdictional. 456 F.3d at
184. Trudeau also relied upon Arbaugh v. Y & H Corp., 546
U.S. 500 (2006). While not an APA case, Arbaugh did state that
statutes should be treated as nonjurisdictional unless Congress
clearly indicates otherwise, thus further undermining our
jurisdictional holdings. Id. at 515-16. We think the proposition
that the review provisions of the APA are not jurisdictional is
now firmly established. We therefore pass on to another

Petroleum Ass’n v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001); Nat’l
Ass’n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005).
9
The Supreme Court relied on Califano v. Sanders, 430 U.S. 99
(1977) for this proposition. But Califano held only that the APA
generally does not afford an implied grant of subject-matter
jurisdiction. Id. at 107.
10
The court does have a method – the Irons footnote – which
allows the full court to endorse such a reversal of course without full
en banc rehearing. See Irons v. Diamond, 670 F.2d 265, 268 n.11
(D.C. Cir. 1981).
 14

jurisdictional difficulty, a variation of the standing issue upon
which the district court rested.

It is settled law that an association has standing to sue only
if at least one member would have standing on his or her own
right. Young America’s Foundation v. Gates, 573 F.3d 797, 799
(D.C. Cir. 2009). Appellants produced affidavits of members
whose cases were pending – in their view, much too long – to
establish injury.11 Yet appellants, in a rather apparent effort to
avoid the preclusive bite of both § 511 and § 704, went out of
their way to forswear any individual relief for the affiants.
Indeed, the asserted illegal action the VA has committed is
described as the average length of time it takes at each stage of
the claims process. But the average processing time does not
cause affiants injury; it is only their processing time that is
relevant. If, for example, affiants fell at the quick-processing
end of a bell-shaped curve, a high average processing time
would be irrelevant to them, and to reverse the analysis, a low
average would not avoid injury if affiants were at the other end
of the curve. In sum, assuming the alleged illegality – that the
average processing time at each stage is too long – that
“illegality” does not cause the affiants injury. And causation is
a necessary element of standing. Young America’s Foundation,
573 F.3d at 799.

11
The plaintiffs’ affidavits also reference members whose claims
have been fully processed and identify negative effects they suffered
while they waited for a decision. But veterans whose claims have
already been processed would no longer have standing to seek the
declaratory and injunctive relief plaintiffs seek in this case. City of
Los Angeles v. Lyons, 461 U.S. 95, 102-05 (1983).
 15

If the affiants were suing by themselves – which is how we
must analyze the claim – asserting that the average time of
processing was too long, it would be apparent that they were
presenting a claim not for themselves but for others, indeed, an
unidentified group of others. But one can not have standing in
federal court by asserting an injury to someone else. See City of
Los Angeles v. Lyons, 461 U.S. 95, 108-09 (1983). It seems the
district judge intuited this point by noting the claims were “not
monolithic.”

For the foregoing reasons, the district court’s order granting
the motion to dismiss is affirmed.

So ordered.