ROSE v. ROURKE (2018)

United States Court of Appeals, Federal Circuit.

Edward Thomas ROSE, Claimant-Appellant v. Peter O'ROURKE, Acting Secretary of Veterans Affairs, Respondent-Appellee

Leslie Punt, Claimant-Appellant v. Peter O'Rourke, Acting Secretary of Veterans Affairs, Respondent-Appellee

Taylor Daniels, Claimant-Appellant v. Peter O'Rourke, Acting Secretary of Veterans Affairs, Respondent-Appellee

Herbert Mitchell Miller, Claimant-Appellant v. Peter O'Rourke, Acting Secretary of Veterans Affairs, Respondent-Appellee

2017-1762

Decided: June 07, 2018

Before Prost, Chief Judge, Schall and Moore, Circuit Judges. John Aubrey Chandler, King & Spalding LLP, Atlanta, GA, argued for claimants-appellants. Also represented by Elizabeth Vranicar Tanis;  Christopher Robert Healy, Washington, DC; Thomas G. Hentoff, Liam James Montgomery, Stephen Raber, Williams & Connolly LLP, Washington, DC. Alexander Orlando Canizares, 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.; Brian D. Griffin, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

The four individual appellants in this consolidated appeal are veterans who have appealed the Department of Veterans Affairs' (“VA”) denial of their claims for service-connected disability benefits. Based on delays that have occurred in each of their cases, Appellants petitioned for writs of mandamus, asking the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) for relief. The Veterans Court denied the petitions.

For the reasons stated in our decision in Martin v. O'Rourke, No. 17-1747, we remand the appeals of Mr. Rose and Ms. Punt so that their mandamus petitions may be considered under the TRAC standard.

Regretfully, the parties have informed us that Mr. Miller passed away during the course of this appeal. ECF No. 77-1 at 2. As such, his appeal in this case is moot. With respect to Mr. Daniels, the VA granted his claim for benefits in December 2017. ECF No. 77-1 at 2. To the extent Mr. Daniels intends to file a Notice of Disagreement with that recent decision, he remains free to, in the future, file a mandamus petition based on delay, should the need arise. His currently pending appeal, however, is moot.

Accordingly, we vacate and remand the appeals of Mr. Rose and Ms. Punt for reconsideration under the TRAC standard, and we dismiss the appeals of Mr. Miller and Mr. Daniels as moot.

DISMISSED-IN-PART, VACATED-IN-PART, AND REMANDED

Costs

Costs to Appellants.

Prost, Chief Judge.