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Veterans Law

CCK LIVE: Recent Federal Circuit Rulings and Their Impact on Veterans

Alyse Phillips

July 5, 2018

Updated: June 20, 2024

lady justice symbolizing federal circuit against blue background

CCK Partner Zach Stolz sat down with fellow CCK Partner Barbara Cook and VA appellate practitioner Kerry Baker to discuss two recent rulings from the United States Court of Appeals for the Federal Circuit and how they impact veterans’ claims: Acree v. O’Rourke and Martin v. O’Rourke.

Federal Circuit Rulings & Their Impact on Veterans (2018)

What Is the Court of Appeals for the Federal Circuit?

The United States Court of Appeals for the Federal Circuit hears cases appealed from the Court of Appeals for Veterans Claims (CAVC).  It oversees questions of law, meaning, if a veteran believes that CAVC committed a legal error in its decision, he or she can appeal to the Court of Appeals for the Federal Circuit.

The Court of Appeals for the Federal Circuit is located in Washington, D.C., and has jurisdiction over intellectual property appeals, patent appeals, and veterans’ appeals. For veterans’ appeals, the Federal Circuit has narrow jurisdiction. The Court cannot hear cases that pertain to fact or application of law to fact. The only type of case that the Court can hear in the realm of veterans’ appeals is that of the interpretation of the law.


Acree v. O’Rourke: When Is a Claim Considered Withdrawn?

The appellant in the case, Lawrence Acree, challenged a decision from the Court of Appeals for Veterans Claims (CAVC) that affirmed a decision from the Board of Veterans’ Appeals regarding the dismissal of seven of his disability claims.

The issue stems from his testimony at a hearing before the Board for several disability claims. At the hearing, the Veterans Law Judge decided that the Veteran had withdrawn seven of his eleven disability claims, and these seven claims were then dismissed. When the case appeared before the Board following the hearing, the Board decided that the veteran’s waiving of his claims was explicit and unambiguous.

What Is the Standard?

The standard for determining if a veteran withdrew his or her claims is outlined in the case DeLisio v. Shinseki. DeLisio states that a veteran’s withdrawal of his or her claim is not to go into effect unless the withdrawal “is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Acree argued the Board only decided that his withdrawal was explicit and unambiguous, but it did not address the third part of DeLisio: that the veteran fully understood the consequences of the action. Acree argued that the Veterans Law Judge at the hearing “did not explain…the consequences of withdrawing any of the claims at issue.”

At the CAVC, Acree argued that he did not voluntarily withdraw those disability claims, and asked that the CAVC remand his case back to the Board to make a decision on those seven claims. CAVC denied the Veteran’s request, stating that the Board’s determination was sufficient.

The Federal Circuit’s Ruling

The Federal Circuit ruled that the Board did not properly apply the standard of determining if the Veteran withdrew his claims, and stated that the Board was incorrect in applying only two of the three criteria. In Acree, the Court appeared to limit its ruling to claims that are withdrawn during a hearing. The Board must now show that a claim withdrawal meets each of the three criteria in order for the claim to effectively be considered withdrawn.


Martin v. O’Rourke: VA Appeal Times and Unreasonable Delay

The case of Martin v. O’Rourke included many appellants, not just the veteran for whom the case is named, John Martin. The Court consolidated the case because the question before them was also before the Court in several other cases. The issue in front of the Court in this case has to do with writs of mandamus and whether the length of the VA appeals process constitutes an unreasonable delay in a veteran’s case. Writs of mandamus are orders from a court to a lower government official or entity that orders them to fulfill their official duties properly. Writs of mandamus are typically filed by veterans when action has been pending on their case at a local VA regional office for long periods of time.

As many veterans are aware, VA can take years to finally decide a veteran’s claim for benefits, and Martin deals almost exclusively with how long cases are taking before VA, and when veterans can file a writ for an unreasonable delay in their case.

Martin v. O’Rourke: Journey to the Federal Circuit

The appellants in this case previously argued before CAVC that their cases have been unreasonably delayed by VA. CAVC dismissed their cases, and the appellants then appealed to the Federal Circuit stating that CAVC used the wrong test in deciding whether they were entitled to help from CAVC in mandating that VA take action on their case.

CAVC used the standard of, in order to secure a writ of mandamus, the appellants had to show that VA was arbitrarily refusing to act on their cases, and that the delay was not just the result of an overburdened system.

The Federal Circuit’s Ruling

The Federal Circuit ordered CAVC to use a six-part test to weigh the different factors in determining if a writ of mandamus is warranted in a case. The six-part standard was first laid out in the decision of Telecomms. Research & Action Ctr. v. FCC (“TRAC”). It states that there are six factors relevant to the question of whether a writ is warranted:

  1. “The time agencies take to make decisions must be governed by ‘rules 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 effect of expediting delayed action on agency activities of a higher or competing priority;”
  5. “…the nature and extent of the interested prejudiced by delay;”
  6. The court does not need to find “’any impropriety lurking behind agency lassitude’ in order to rule that the “agency action is unreasonably delayed.”

This ruling holds that CAVC must now look at multiple different factors when looking at a case for a writ of mandamus.

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse