United States Court of Appeals
for the Federal Circuit
______________________
ELON L. EBANKS,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1277
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3212, Judge Coral Wong
Pietsch.
______________________
Decided: December 14, 2017
______________________
MARK RYAN LIPPMAN, The Veterans Law Group, La
Jolla, CA, argued for claimant-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE,
MARTIN J. SENDEK, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
2 EBANKS v. SHULKIN
______________________
Before DYK, LINN, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Elon Ebanks filed a claim for veterans benefits for
service-connected posttraumatic stress disorder, hearing
loss, tinnitus, and arthritis. His claim for an increased
disability rating was denied by the Department of Veter-
ans Affairs (“VA”) Regional Office (“RO”) on October 9,
2014, and on December 3 he sought review by the Board
of Veterans Appeals (“Board”). Mr. Ebanks simultaneous-
ly requested a videoconference hearing before the Board
pursuant to 38 U.S.C. § 7107. This statute entitles a
veteran appealing to the Board “an opportunity for a
hearing” before the Board may decide the appeal.
§ 7107(b).
When by September 16, 2016, almost two years later,
the Board had not scheduled Mr. Ebanks for a hearing, he
sought a writ of mandamus from the Court of Appeals for
Veterans Claims, claiming unreasonable delay and seek-
ing to compel the Board to schedule a hearing. The Court
of Appeals for Veterans Claims denied relief, and Mr.
Ebanks appealed to this court. While his appeal was
pending before this court, the Board held the requested
hearing on October 11, 2017—nearly three years after his
initial request.
The delay experienced by Mr. Ebanks is typical. At
oral argument, the government conceded that the average
delay just to schedule a hearing is three years. The
consequence is that veterans routinely suffer substantial
delays in receiving hearings to which they are entitled.
The government now claims that this appeal is moot
because Mr. Ebanks has received his hearing. Mr.
Ebanks asserts that the case is not moot because it falls
EBANKS v. SHULKIN 3
within the exception to mootness for cases that are capa-
ble of repetition yet evading review. That doctrine “ap-
plies ‘only in exceptional situations,’ 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.’” King-
domware Techs., Inc. v. United States, 136 S. Ct. 1969,
1976 (2016) (alterations in original) (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)).
We ordered supplemental briefing on this issue. In
that supplemental briefing, Mr. Ebanks asserted that
even if he prevailed before the Board, the relief awarded
is typically a remand to the RO, and his claim will require
further adjudication by the RO to determine whether
increased benefits should be awarded and the effective
date of his rating. Moreover, he asserts his expectation
that he will appeal the RO’s further determination to the
Board, again request a hearing, and again be subjected to
unreasonable delay. The government disagrees that Mr.
Ebanks can reasonably expect to again be subject to the
same action.
If the Board denies Mr. Ebanks relief, and if he ap-
peals to the Court of Appeals for Veterans Claims, and if
Mr. Ebanks prevails on that appeal, he may be entitled to
a new hearing on remand to the Board. But any Board
hearings on remand are subject to expedited treatment
under 38 U.S.C. § 7112.
If the Board grants Mr. Ebanks relief and remands to
the RO, and if Mr. Ebanks disagrees with the RO’s enti-
tlement or effective-date determination and again appeals
to the Board, he may also be entitled to a new hearing.
But as the government points out, Congress has recently
overhauled the review process for RO decisions. See
Veterans Appeals Improvement and Modernization Act of
4 EBANKS v. SHULKIN
2017 (“VAIMA”), Pub. L. No. 115-55, 131 Stat. 1105
(codified in scattered sections of 38 U.S.C.). As relevant
here, veterans who disagree with an RO decision may now
elect to pursue one of three tracks for further review,
including higher-level review at the RO, filing a supple-
mental claim, and appealing to the Board. See id.
sec. 2(h)(1), § 5104C(a)(1), 131 Stat. at 1108. Appeals to
the Board will now be divided into at least two dockets,
separating out those claims in which the veteran has
requested a hearing. See id. sec. 2(t), § 7107(a), 131 Stat.
at 1112-13. Any future appeal to the Board by Mr.
Ebanks may well be subjected to this new regime. See id.
sec. 2(x)(1), 131 Stat. at 1115 (setting an effective date at
the later of February 14, 2019, and 30 days after VA’s
certification of readiness to carry out VAIMA); id.
sec. 2(x)(5), 131 Stat. at 1115 (providing veterans the
option of pursuing legacy claims under new system). And
at this point Mr. Ebanks has not established that future
Board proceedings will be subject to the same delays as is
presently the case.
Given these many contingencies, Mr. Ebanks has not
shown a sufficiently reasonable expectation that he will
again be subjected to the same action. The possibility
that Mr. Ebanks will seek a future hearing at the Board
or, if he does, that a hearing will be delayed depends upon
a chain of hypothesized actions—by the Board, the RO,
the courts, and Mr. Ebanks himself—that on this record
are too attenuated and speculative to trigger the excep-
tion to mootness. See, e.g., Murphy v. Hunt, 455 U.S. 478,
482 (1982) (per curiam) (rejecting application of exception
to mootness in light of “mere physical or theoretical
possibility” of recurrence); Senate Permanent Subcomm.
on Investigations v. Ferrer, 856 F.3d 1080, 1088 (D.C. Cir.
2017) (quoting id.) (same given only “a ‘theoretical possi-
bility’ that th[e] chain of events might occur”).
EBANKS v. SHULKIN 5
Even if this case were not moot, we question the ap-
propriateness of granting individual relief to veterans
who claim unreasonable delays in VA’s first-come-first-
served queue. Granting a mandamus petition in such
circumstances may result in no more than line-jumping
without resolving the underlying problem of overall delay.
See, e.g., In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir.
1991) (rejecting mandamus petition to advance an FDA
application because “a judicial order putting [petitioner]
at the head of the queue simply moves all others back one
space and produces no net gain”).
Under these circumstances, the issue seems best ad-
dressed in the class-action context, where the court could
consider class-wide relief. See Stephen C. Robin, Healing
Medicare, 95 N.C. L. Rev. 1293, 1303 (2017) (citing Barr,
930 F.2d at 74; Air Line Pilots Ass’n, Int’l v. Civil Aero-
nautics Bd., 750 F.2d 81 (D.C. Cir. 1984)) (suggesting a
preference for suits brought on behalf of a class or associ-
ation, where the court can “shift[] its focus from one
claimant to the whole system” and “simply address[] the
unreasonable delays felt by all of the potential parties
with claims under the Act in question”). We have recently
approved the use of collective actions in the Court of
Appeals for Veterans Claims in a case concerning delays
at another stage of the VA claims process. Monk v.
Shulkin, 855 F.3d 1312, 1318-22 (Fed. Cir. 2017).
* * *
Our decision in this case should not be understood as
condoning the extraordinary delays experienced by Mr.
Ebanks and so many other veterans seeking the Board
hearings to which they are statutorily entitled. As it
stands, it appears that veterans desiring a Board hearing
must endure at least a three-year delay in the processing
of their claims. And as the government acknowledged at
oral argument, the reforms recently enacted by Congress,
6 EBANKS v. SHULKIN
while possibly mitigating delays for future cases, do not
appear directly to address the present backlogs and
delays at the Board level.
However, the particular dispute between these parties
is now moot, and we lack jurisdiction over this appeal,
which must be dismissed. Because the mooting of this
case denied Mr. Ebanks the opportunity for appellate
review, the judgment of the Court of Appeals for Veterans
Claims is vacated, and the case is remanded to that court
with the instruction to dismiss the petition as moot. See
Camreta v. Greene, 563 U.S. 692, 712-14, 712 n.10 (2011)
(citing United States v. Munsingwear, 340 U.S. 36, 39-41
(1950)).
VACATED AND REMANDED
COSTS
No costs.