There is no question that, procedurally, the appellate process before the Department of Veterans Affairs (VA) is a robust one under Title 38. However, with the timelines at many VA Regional Offices approaching two years from the time of filing a Notice of Disagreement and when the NOD is adjudicated, the question becomes at what point does delay equate to denial of due process? Further, what entity (beyond Congress) has the power the redress systemic delays in the VA appellate process? Finally, does the All Writs Act provide adequate relief to redress issues involving systemic delays in the VA adjudication process?
To be fair to the VA, systemic delays at large government agencies are not without precedence. The Social Security Administration has faced similar issues in the past. See Wolfe, Jeffrey S., Civil Justice Reform in Social Security Adjudications, 33 Journal of the National Association of Administrative Law Judiciary (2013). Additionally, I can recall another Article I court, the Court of Appeals for the Armed Forces (CAAF), attempting to redress systemic delays in handling military criminal appeals under Title 10. See United States v. Moreno, 63 M.J. 129 (2006). As a matter of fairness, it is also worth noting the delay within the VA is not necessarily a function of current agency inefficiency or incompetence . . . administrative backlog involving veterans benefits has occurred after every major U.S. combat engagement since the Civil War.
However, what is unique to the Department of Veterans Affairs is that veterans (either individually or as a class) are almost universally foreclosed from seeking redress in the federal Article III courts. See Veterans for Common Sense (VCS) and United for Truth (VUFT) v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc) (cert. den.). Under Title 38, issues involving veterans benefits are exclusively in the jurisdiction of United States Court of Appeals for Veterans Claims (CAVC) and the Court of Appeals for the Federal Circuit (Fed. Cir.). See 38 U.S.C. §§ 511, 7252, 7292.
Unlike a federal circuit court — where a class of claimants can seek redress by bringing a suit for relief for delay in agency decisions (for example, Reichenthal, et. al., v. Harris, 492 F. Supp. 637 (E.D.N.Y. 1980) — issues involving delay in the adjudication process under Title 38, are addressed under the All Writs Act, 28 U.S.C. § 1651(a). The All Writs Act was enacted to address remedy only in “extraordinary situations”, is not structured to permit remedial action for systemic problems, and places an high burden on the petitioner to demonstrate they have a “clear and undisputable right” to the requested relief. This also presents both a logical and judicial philosophical problem: If the All Writs Act requires that the petitioner individually demonstrate that the delay “is so extraordinary that it amounts to arbitrary refusal by the Secretary to act”, Costanza v. West, 12 Vet. App. 133 (1999), can the CAVC even consider the issues involving systemic delays when adjudicating issues involving an individual petition for mandamus?
Almost daily, the CAVC issues unpublished opinions ordering “that the petition for extraordinary relief in the nature of a writ of mandamus is DENIED.” Williams v. Shinseki (unpub.). In the recent years, I can only recall a single case where the CAVC granted mandamus for issues involving delay in adjudication. Indeed, the CAVC will commonly cite to other unpublished opinions where delay in processing for years does not constitute “unreasonable delay” under the All Writs Act. It begs the question, is the All Writs Act a sufficient judicial avenue to address systemic delay within the VA adjudication process? Could the CAVC do — as the CAAF did in Moreno — issue a decision ordering that all claims pending on appeal for more than two years be considered “presumptively unreasonable”? If so, does the All Writs Act provide the jurisdictional reach to do so?