Perkins

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 24-6515
KASSIDY A. PERKINS, APPELLANT,
V.
DOUGLAS A. COLLINS,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Chief Judge, and TOTH and LAURER, Judges.
O R D E R
After the Court has issued a decision but before mandate issues, Rule 8(a)(2) of this Court's
Rules of Practice and Procedure permits a party to move the Court to compel the Secretary to
comply with that decision. U.S. VET. APP. R. 8(a)(2). Air Force veteran Kassidy Perkins secured a
favorable decision from this Court in 2025, Perkins v. Collins, 38 Vet.App. 304 (2025). The
Secretary appealed but later moved to dismiss, and the case returned to us in March 2026 with
mandate set to issue in early June 2026. In April 2026, Ms. Perkins filed a motion under Rule 8 to
compel the Secretary to comply with our decision in Perkins. Because mandate was set to issue
less than 2 months after the injunction motion was filed, we stayed proceedings so that we might
fully examine the issues raised in her motion. Ultimately, we conclude that Ms. Perkins's motion
seeks relief not contemplated by Rule 8. For the reasons explained below, her motion is denied.
I. BACKGROUND
The facts of this case are spelled out in Perkins and need not be rehashed in detail.
37 Vet.App. at 306-07. As relevant to this motion, Ms. Perkins served in the Air Force for 6
continuous years; after her separation, she applied for educational benefits. While her claim was
pending, the U.S. Supreme Court held that veterans with service lengthy enough to satisfy the
eligibility requirements of both Chapter 30 (Montgomery GI Bill (MGIB)) and Chapter 33 (Post-
9/11 GI Bill) are entitled to use both benefits in any order up to the 48-month cap prescribed in 38
U.S.C. § 3695. Rudisill v. McDonough, 601 U.S. 294, 314 (2024), rev'g, 55 F.4th 879 (Fed. Cir.
2002), rev'g BO v. Wilkie, 31 Vet.App. 321, 346 (2019). Notably, Ms. Perkins served a single
period of service in contrast to the two separate periods served by Mr. Rudisill, and the Board
relied on this distinction to deny her entitlement to MGIB benefits. On appeal, we held that Rudisill
imposed no "break in service" requirement as the Board suggested; rather, a veteran who serves
long enough such that her service can independently satisfy both Chapter 30's and Chapter 33's
eligibility requirements can establish entitlement to both benefits. Perkins, 38 Vet.App. at 318.
Thus, we "reverse[d] the Board's decision and remand[ed] this matter for VA to assign appellant
the appropriate educational benefits under the MGIB and Post-9/11 GI Bill based on the correct
interpretation of the governing law we have described." Id. at 319.
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The Secretary appealed our decision to the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) but ultimately moved to voluntarily dismiss the appeal before the court could
reach the merits. The appeal then returned to us with mandate set to issue on June 1, 2026. See 38
U.S.C. § 7291(a)(1) ("A decision of the United States Court of Appeals for Veterans Claims shall
become final . . . upon the expiration of the time allowed for filing a petition for certiorari with the
Supreme Court of the United States, if the decision of the Court of Appeals for Veterans Claims
is affirmed or the appeal is dismissed by the . . . Federal Circuit and no petition for certiorari is
duly filed.").
On April 13, 2026, Ms. Perkins moved for an injunction pending mandate under Rule 8.
Specifically, she sought to compel "the Secretary to comply with" Perkins "pending final
mandate." Mot. for Injunction at 1. 1 In response, the Secretary contended that the appellant
identified no basis for injunctive relief because the appeal has already been decided and mandate
would enter in regular course. To that end, he expressed that he would not oppose a motion that
the Court issue mandate immediately so that appellant's claim could more expeditiously return to
the Board for application of Perkins if she wished. Secretary's April 27, 2026, Resp. at 3.
In reply, Ms. Perkins insisted that expediting mandate would not provide her with the relief
she seeks. She explained that VA's internal guidance, coupled with what she characterizes as VA's
"record of administrative noncompliance" with Rudisill, all but guarantee that her claim will be
denied or that implementation of the Court's remand order will otherwise "fall short." Appellant's
May 8, 2026, Response to Court's May 6, 2026, Order at 3-5. In other words, appellant said that
expediting mandate would only hasten the Agency's noncompliance.
Meanwhile, June 1, 2026, the date mandate was set to issue, was rapidly approaching.
Given the issues raised in these filings, we sought Ms. Perkins's position on whether we should
stay mandate—and thus, further delay the Board's application of Perkins. She requested that the
Court do so and resolve her pending motion. We therefore stayed proceedings pending our decision
on the appellant's Rule 8 motion.
II. ANALYSIS
Before we can address the merits of Ms. Perkins's motion, we must first determine whether
it is appropriate under our rules. See Rudisill v. McDonough, 34 Vet.App. 176, 182 (2021)
(addressing the propriety of the appellant's motion for an injunction); see also U.S. VET. APP. R.
8(a)(2). As discussed below, we conclude that Ms. Perkins's filings make clear that she seeks relief
of a vastly different nature than that which Rule 8 is intended to provide.
Rule 8(a)(1) allows a party to seek a Court order suspending Agency action by the
Secretary or the Board pending the Court's decision on a claim. Rule 8(a)(2) permits a party to
1 In her initial motion, Ms. Perkins seemed to seek relief for "all veterans to whom [Perkins] applies." Mot.
for Injunction at 1-2. Indeed, she requested that the Court "order the Secretary to immediately apply Perkins to all
eligible claimants," which she estimated to be around 1.2 million veterans. Id. at 2, 8-10. After the Secretary took
issue, she walked back this request and clarified that she seeks relief only for herself. See Appellant's May 1, 2026,
Reply in Support of Mot. for Injunction; Appellant's May 8, 2026, Reply to Court's May 6, 2026, Order. We therefore
focus only on the relief sought by Ms. Perkins as it pertains to herself.
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seek a Court order compelling the Secretary to comply with a decision after the decision has been
issued but before mandate has entered. And Rule 8(a)(3) provides that a party may move to
suspend the precedential effect of a decision pending its appeal. The thematic thread uniting these
three subsections is a temporal mismatch between the need for immediate relief for a party facing
imminent harm and the pending time periods for applicable milestones, at which time such relief
would otherwise be available. In other words, Rule 8 was intended to address extraordinary
situations where a party faces immediate harm while awaiting a specific milestone, such as
mandate, to issue.
These exact dynamics were readily apparent in our consideration of Mr. Rudisill's motion
for an injunction. Rudisill, 34 Vet.App. at 185. Although predating the current version of Rule 8,2
that case illustrates the sort of situation in which a movant faces immediate harm related to the
uncertainty as to when the traditional appellate process could provide the relief sought. In its merits
decision, the Court determined that Mr. Rudisill was eligible for both MGIB and Post-9/11 GI bill
benefits. BO, 31 Vet.App. at 346. The Secretary appealed the Court's decision to the Federal
Circuit, meaning that under Tobler v. Derwinski, 2 Vet.App. 8 (1991), VA had no obligation to
apply Rudisill to Mr. Rudisill himself because his case was not final. (Further, given the immediate
precedential effect of this Court's decision, this led to the ironic situation where VA was obligated
to regard all claimants as entitled to the education benefits spelled out in our decision except for
Mr. Rudisill, whose claim they were challenging on appeal to the Federal Circuit).
Most significant, however, was that Mr. Rudisill was presently enrolled in an educational
program, and his benefits were set to run out unless he was able to access both pools of benefits.
He sought an injunction compelling the Secretary to apply Rudisill to him despite the non-final
nature of his case and immediately begin paying him benefits. The Court agreed that relief was
necessary in that case and ordered the Secretary to comply with its merits decision and begin
paying the veteran "the statutory benefits to which he [was] entitled." Rudisill, 34 Vet.App. at 186.
Ultimately, the confluence of the immediate need for relief and the potential uncertainty of when
the claim would be finally decided was sufficient to warrant an injunction.
Here, Ms. Perkins fashions her motion as one under Rule 8(a)(2), asking the Court to
compel the Secretary to comply with Perkins as it applies to her "pending final mandate." Mot. for
Injunction at 1. From the outset, however, Rule 8 proved an odd fit for the type of relief sought
here, as there remained only weeks until mandate was set to issue when the motion was filed. More
confounding was that her appeal was final in all but name, as the Secretary abandoned his appeal
of Perkins at the Federal Circuit and later reaffirmed his lack of opposition to expediting mandate.
As such, there was no meaningful barrier between the Secretary's application of Perkins to the
appellant's claim other than the ordinary course of the Court's proceedings following mandate from
the Federal Circuit, which could be waived at any time. Put differently, there was no uncertainty
as to when mandate would enter, and the relief sought would be provided. Curiously, rather than
seeking expedited mandate, the petitioner has rejected the Secretary's proposal to expedite
2 Although the Court granted injunctive relief to Mr. Rudisill, we held that such relief was not available under
the then-extant version of Rule 8, but rather our inherent power to manage our own proceedings. Subsequently, the
Court amended Rule 8 to provide for the type of relief Mr. Rudisill sought. See In re Rules of Practice and Procedure
and Rules of Admission and Practice, U.S. VET. APP. MISC. ORDER 09-24 (July 16, 2024).
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mandate, and she has since supported staying mandate so that the Court may address the merits of
her motion.
These facts make clear that Ms. Perkins's motion has little to do with concerns about timing
and much to do with the nature and scope of relief provided in the decision itself. At no point does
she tie her alleged harm to the delay between the Court's decision and the issuance of mandate;
instead, she points to potential harms in actions the Agency may take after mandate issues, such
as delaying adjudicating her claim or improperly denying benefits. Concerned with the Agency's
compliance with Perkins generally, she contends that internal guidance and a perceived pattern of
noncompliance means that it will ultimately misapply Perkins and deny her claim. She therefore
seems to ask us to grant an injunction that overrides the Agency's internal guidance or otherwise
awards her full entitlement to MGIB benefits now. But Rule 8(a)(2) is not a means for the Court
to proactively cure any potential deficiencies in the Agency's future adjudication of her claim by
compelling the Secretary to, on remand, ensure he "does it right."
Not even in Rudisill, where we found injunctive relief warranted, did we go so far. There,
we simply ordered the Secretary to begin paying the veteran "the statutory benefits to which he is
entitled," Rudisill, 34 Vet.App. at 186, the specifics of which we left for the Secretary to determine
in the first instance in our merits decision, BO, 31 Vet.App. at 346 ("Thus, we reverse the Board's
decision and remand with instructions that the Board is to calculate the amount of time for which
BO is entitled to benefits under the terms of the Court's decision. . . . But we leave this factual
determination to the Board in the first instance."). Ms. Perkins's motion asks us to order more relief
than that provided in the merits decision, in which we simply directed the Secretary to "assign
appellant the appropriate education benefits under the MGIB and Post-9/11 GI Bill based on the
correct interpretation of the governing law we have described." Perkins, 38 Vet.App. at 319
(emphasis added). (It would also risk expanding our decision to cover matters not included in the
appellate record and so beyond our jurisdiction. See 38 U.S.C. § 7252(b) ("Review in the Court
shall be on the record of proceedings before the Secretary and the Board"); see also 38 U.S.C. §
7261.)
To be sure, the Secretary is already bound to implement Perkins and apply it to Ms.
Perkins's claim. See Browder v. Brown, 5 Vet.App. 268, 270-71 (1993) ("A body subject to the
decision of a federal appellate court 'is without power to do anything which is contrary to either
the letter or spirit of the mandate construed in light of the opinion of the court deciding the case.'")
(quoting City of Cleveland v. Federal Power Commission, 182 U.S. App. D.C. 346, 561 F.2d 344
(D.C. Cir. 1977)). And the Secretary is already obligated to ensure compliance with the Court's
remand order. See Stegall v. West, 11 Vet.App. 268, 271 (1998). Should he fail to do so, that is
what the traditional appeals process is for. To the extent that she disagrees with VA's internal
policy, that is a matter to raise within her rulemaking challenge before the Federal Circuit. See
Commonwealth of Virginia, et al., v. Sec'y of Veterans Affairs, Fed. Cir. No. 2025-2033 (docketed
Aug. 20, 2025). And should the Agency unreasonably delay adjudicating her claim, she may file
a petition for extraordinary relief under Rule 21. See Monk v. Wilkie, 32 Vet.App. 87, 101 (2019)
(en banc).
The crux of Rule 8(a)(2) is that a movant may suffer harm related to the time it takes for
mandate to enter, and Ms. Perkins alleges no such harm. If anything, the only impediment to the
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relief that Rule 8(a)(2) could afford is her own actions. Put simply, Rule 8 is not the vehicle for
the kind of relief she seeks, that which could convert her decision in Perkins from an ordinary
remand to the Board for it to correctly apply the law to some sort of superdecision that guarantees
no Agency error and an award of benefits.
III. CONCLUSION
Upon consideration of the foregoing, it is
ORDERED that the May 28, 2026, stay of proceedings in this case is lifted. It is further
ORDERED that appellant's April 13, 2026, motion is denied. It is further
ORDERED that mandate shall issue 14 days after the date of this order.
DATED: August 19, 2026 PER CURIAM.
Copies to:
Timothy L. McHugh, Esq.
VA General Counsel (027)
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