Pursuant to U.S. Vet.App. R. 21, the Petitioner, NAME OF VETERAN, petitions this Court for extraordinary relief in the nature of a writ of mandamus, directed to Respondent, Jesse Brown, Secretary of Veterans Affairs, and its employees and agents in the United States Department of Veterans Affairs; specifically C. J. Matuszak, Adjudication Officer, Winston-Salem, North Carolina Department of Veterans Affairs Regional Office. This action seeks to compel the Adjudication Officer at the Winston-Salem Regional Office to issue a Statement of the Case to support denial or an unresolved issue in a pending claim on the merits concerning whether the Appellant has been paid correctly for past due benefits pursuant to that letter from the Department of Veterans Affairs dated May 10, 1995 as sent to the Appellant.
In the alternative, the Petitioner seeks a Rating Decision or Statement of the Case as to why the Appellant is not entitled to the money alleged by the Appellant and his counsel as set forth herein below. Further, this action seeks the opportunity to file a Petition for an award of attorney's fees, costs and expenses under § 2412 of Title 28, United States Code, the Equal Access to Justice Act, in that there is no regulatory justification for the agency of original jurisdiction (AOJ) and the AOJ refusal to issue payment of the monies, issue a Rating Decision, or in the alternative, issue a Statement of the Case.
In support of this verified petition, Petitioner alleges the following:
THE PARTIES
1. Petitioner, NAME OF VETERAN (hereafter the "veteran"), is a seventy percent (70%) service-connected disabled veteran who now receives individual unemployability and who resides in Bethel, North Carolina.
2. Respondent, Jesse Brown, is the Secretary for the United States Department of Veterans Affairs, and is named herein solely in his official capacity.
3. Respondent, C. J. Matuszak, is the Adjudication Officer in the Adjudication Section of the Winston-Salem, North Carolina Regional Office and is named herein solely in his official capacity.
JURISDICTION
4. This Court has jurisdiction over the subject matter of this action under the All-Writs Act, 28 U.S.C. § 1651(a), the general supervisory authority of the U.S. Court of Veterans Appeals over the VA and Board of Veterans' Appeals (BVA) conferred by the Veteran's Judicial Review Act of 1988, Public Law 100-687, 102 Stat. 4105 (11/18/88), 38 U.S.C. § 7251-7292, as amended, and in aid of the Court's potential jurisdiction over the Petitioner's future claims, 38 U.S.C. §§ 7252, 7261(a). Erspamer v. Derwinski, 1 Vet.App. 3 (1990). This Court has jurisdiction to award attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412), as do all courts established under Article I of the United States Constitution. See Essex Electro Engineers, Inc. v. U.S., 757 F. 2d 247, 251 (Fed.Cir. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (CMA 1989).
FACTS
1. On May 10, 1995, the Appellant received a letter from the Winston-Salem Regional Office assigning him certain schedular ratings for service-connected disabilities as set forth in the letter. Basically, the Appellant's bipolar pes planus with calluses was raised from 30% to 50% and the Appellant was granted depressive disorder for 30% for a combined total of 70%. Further, the Appellant was granted individual unemployability as a result of the pes planus or depressive disorder. Said letter is attached hereto as Exhibit A, containing three pages.
2. The Rating Decision granting such benefits containing three pages is attached hereto as Exhibit B.
3. On October 18, 1995, counsel for the Appellant gave notice of appeal to the Regional Office indicating that the Appellant had not been paid correctly based on calculations made at that time. A copy of said letter and calculations are attached hereto as Exhibit C.
4. A copy of the Appellant's contract with his counsel is attached hereto as Exhibit D.
5. On October 18, 1995, counsel for the veteran filed a motion to receive correct attorney's fees in disagreement with that Rating Decision of August 8, 1995, which denied attorney's fees to Appellant's counsel, attached hereto as Exhibit E.
6. On October 17, 1995, the veteran gave notice of appeal to the Board of Veterans' Appeals related to the issues that he had not been paid correctly nor had his issues ever been resolved. A copy is attached hereto as Exhibit F.
7. On October 17, 1995, the veteran submitted a Statement of Specific Issues related to the Veteran's Judicial Review Act and whether the Department of Veterans Affairs had acted in bad faith or deceit under the circumstances. A copy is attached hereto as Exhibit G.
8. On October 19, 1995, the Appellant signed a Notice of Disagreement or disagreement related to his appeal to the Board of Veterans' Appeals that he did not agree with the evaluation of his pes planus disagreement. Such issue has never been resolved as of this date.
9. The current status of said case is now before the United States Court of Veterans Appeals awaiting Appellee's response in the matter. The last action in said case before the United States Court of Veterans Appeals was Appellant's Unopposed Motion for Extension of Time until February 7, 1997 granted on January 9, 1997. Because of counsel's professional relationship with the 027C Group at the Office of the General Counsel, counsel has always readily granted motions for extension of time.
11. On March 7, 1997, counsel moved for a Summary Reversal in said case based on the case entitled, "In the Matter of the Fee Agreement of James W. Stanley, Jr.,", as cited above and requested that the Court order the Department of Veterans Affairs to pay the 20% contingency fee owed to counsel since there was no issue.
To date, the Office of the General Counsel has not responded to said Motion.
ARGUMENT
General Law
As the Court noted in Erspamer v. Derwinski, 1 Vet.App. at 9-10, a petitioner seeking an extraordinary writ, such as a writ of mandamus, must demonstrate both a clear and indisputable entitlement to the writ and the lack of an adequate alternative means to obtain the requested relief. A writ of mandamus is a drastic remedy, one to be invoked in only extraordinary circumstances. In Re: Quigley, 1 Vet.App. 1 (1990). (Quoting from In the Matter of the Fee Agreement of Smith, 4 Vet.App. 487, 500 (1993))
Clear Entitlement to the Writ
As the facts demonstrate, the claim for correct payment of benefits pursuant to M21-1 to the veteran should not be in dispute by the General Counsel nor the Secretary. The Department of Veterans Affairs did not follow its own regulations regarding appropriate payment.
There is an administrative failure on the part of the Secretary to apply the correct statutory and regulatory provisions to the correct and relevant facts and correct payment per Oppenheimer v. Derwinski, 1 Vet.App. 370, 371 (1991). The failure of the DVA to follow the correct regulations is "[t]he sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992).
Clearly, the veteran gave Notice of Disagreement to the decision related to payment of his benefits within the one year period allowed by statute and by regulation.
The DVA continues to ignore the claim of the veteran for both increased benefits based on his pes planus as well as correct payment of his benefits.
A thorough examination of Title 38 of the Code of Federal Regulations reveals that the general guidelines for the Department of Veterans Affairs are required to give notification of decisions affecting benefits.
38 C.F.R. § 3.103(b) states:
(b) The right to notice-(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
38 C.F.R. § 3.103(f) further expands the requirements of notice stating:
(f) . . . The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of . . . the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal. . . .
This section of Title 38 of the United States Code requires that when making a decision "affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant, the Secretary shall, on a timely basis, provide to the claimant, (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision." 38 U.S.C. § 5104(a).
38 C.F.R. § 19.26 "Action by Agency of Original Jurisdiction on Notice of Disagreement," a regulation which governs the conduct of the VARO, states: "When a Notice of Disagreement is timely filed, the agency of original jurisdiction must reexamine the claim and determine if additional review or development is warranted. When a Notice of Disagreement is received following a multiple issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative. If no preliminary action is required, or when it is completed, the agency of original jurisdiction must prepare a Statement of the Case pursuant to 19.29 of this part, unless the matter is resolved by granting the benefits sought on appeal or the Notice of Disagreement is withdrawn by the appellant and his or her representative." (emphasis added) 38 C.F.R. § 19.27 notes: "If, within the agency of original jurisdiction, there is a question as to the adequacy of a Notice of Disagreement, the procedures for an administrative appeal must be followed." Finally, 38 C.F.R. § 19.25 requires that:
. . . the claimant and his or her representative, if any, will be informed of appellate rights. . . including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or non-entitlement to Department of Veterans Affairs benefits.
The agency of original jurisdiction has a regulatory obligation to notify claimants of appellate rights, to provide for an administrative appeal if the Notice of Disagreement is in question, or "must prepare a Statement of the Case" following the filing of an adequate Notice of Disagreement. The veteran has sufficiently clarified the issue which should be appealed. Furthermore, the VA has not requested additional review or development.
The veteran's counsel, unable to receive any response to his request for an SOC, is entitled by the statues and regulations to a decision.
There has been no question raised by the agency of original jurisdiction that the NOD is inadequate and that an administration appeal is necessary. The Department of Veterans Affairs has point blank refused to accept the veteran's NOD, leaving the veteran unable to perfect his appeal to the BVA as is his right under the governing regulations. The VA should have informed the veteran and his representative of any appellate rights, including the right to a personal hearing, and issued an SOC. The VARO continues to fail to comply with their own regulation by refusing to do so. The veteran would then be able to pursue further appellate review as is his right by responding with an appeal. The veteran is clearly entitled to the adjudication the RO is refusing to complete or provide.
Lack of Adequate Alternative Means
The veteran has been deprived of any further adjudicative process by which to contest the inactivity by the VARO. The statements contained in the October 18, 1995 correspondence are the veteran's position and the VARO has taken no action.
No SOC has been issued from which the veteran can now continue his appeal because the VA refuses to issue it despite the obligation to do so created by the statute. Petitioner/veteran has exhausted all available administrative remedies by filing appropriate requests for a decision on an unadjudicated issue, filing the mandatory NOD; further giving notice to the Regional Office that they had failed to render a decision on the unadjudicated issue and correct payments to the veteran. The Petitioner now files this petition for relief, which in and of itself is enough to bring this matter to the attention of the Secretary, and should effectively serve to exhaust any and all administrative remedies.
The Petitioner has the better of the legal argument as the VA has shown no statutory or regulatory authority to refuse to take the actions which they have refused to take and the veteran satisfies the All Writs Act test for extraordinary relief by carrying the burden of showing a clear and indisputable entitlement to the writ, and a lack of an adequate alternative means to obtain the requested relief. See Nagler v. Derwinski, 1 Vet.App. 297, 303 (1991).
Extraordinary Circumstances
It is understood that a writ of mandamus is a drastic remedy to be invoked only in extraordinary circumstances. The Court has noted that the use of the All Writs Act in connection with agency matters has been even more rare and the scope of relief granted in these cases has been narrow. Erspamer, 1 Vet.App. at 7. The Court has stated: "[t]he circumstances that will justify our interference with non-final agency action must be truly extraordinary, for this Court's supervisory province as to agencies is not as direct as our supervisory authority over trial courts." Id. Veteran's request for a writ of mandamus falls within these narrow guidelines. The Court has noted that "All Writs" jurisdiction is particularly applicable where, as here, an alleged refusal to act would forever frustrate the ability of a court to exercise its appellate jurisdiction. 'The Court clearly has the power to issue writs under the All Writs Act in aid of its prospective appellate jurisdiction in the face of action. . . that would frustrate such prospective appellate jurisdiction.' Margolis v. Banner, 599 F.2d at 440-441." Erspamer, 1 Vet.App. at 8. There is clearly a refusal by the Winston-Salem VARO to act by refusing to issue a Statement of the Case and to pay the veteran the money he is owed pursuant to the VA's own regulations. This is not merely a matter of a delay in taking administrative action, or in resolving the veteran's claim, or an inadvertent failure to comply.
Only the Court can now compel the agency of original jurisdiction to issue a Statement of the Case and to pay the veteran as he should be paid. The Court has recognized that sometimes a lawsuit is necessary as a "catalyst in prompting defendants to take action to meet plaintiff's claims. . . Lematta v. Brown, ___ Vet.App. ___, U.S. Vet.App. No. 93-923 (1/26/95). Failure to do so would forever frustrate the ability of the veteran to have his valid claim heard, and forever frustrate the ability of the Court to exercise its appellate jurisdiction.
This Court has power to award attorney fees, costs and expenses to the Petitioner under the EAJA (28 U.S.C. § 2412). This law has been applied to actions before courts created under Article I of the Constitution of the United States. See Essex Electro Engineers, Inc. v. U.S., 757 F.2d 247, 251 (Fed.Circ. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (Ct. of Mil. Appeals 1989). The actions of the Winston-Salem VARO are without a basis in law or fact. No possible compelling reason exists for the absolute refusal to issue a Statement of the Case or to pay the veteran the money he is owed. Therefore, counsel for veteran should be given the opportunity to file a petition for attorney fees, costs and expenses in this action, as required by 28 U.S.C. § 2412(d)(1)(B).
Nature of Relief Sought
This action seeks the Court to issue a writ of mandamus compelling the Winston-Salem VARO to render a Statement of the Case or in the alternative, to pay the veteran as he should be paid. In the present circumstance, the veteran cannot pursue appellate relief by the BVA, and if necessary, by this Court; or in the alternative, a formal rating decision with written notification of that decision, thus allowing the veteran to pursue appellate review or appeal to the Board of Veterans' Appeals.
This action also seeks the Court's allowance to file a petition for an award of attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412) in that there was no substantial justification, or support in regulation for the unreasonable refusal of the Winston-Salem VARO to issue a Rating Decision or a Statement of the Case in this matter.
CONCLUSION
It is respectfully requested that this Court issue an order directed to the Respondents and their counsel to answer Petitioner's Petition and show cause why the relief prayed for in this action should not be granted. Petitioner prays that a writ of mandamus be issued under the seal of this Court commanding the Respondents to produce a Rating Decision or a Statement of the Case based upon the Notice of Disagreement filed by the veteran/Petitioner, or in the alternative, command the Respondent to issue a Rating Decision in response to the veteran/Petitioner's claim; that the Court grant the Petitioner the opportunity to file a petition for an award of attorney fees, costs and expenses incurred in bringing this Petition, under the EAJA; and that the Court grant such other and further relief as may be just and proper.
Respectfully submitted this the ___ day of ______, 1997.
______________________________
Hugh D. Cox
NC Bar #6567
Attorney for Petitioner
321 Evans Street Mall Suite 102
P. O. Box 154
Greenville, NC 27835-0154
Telephone: (919) 757-3977
FAX: (919) 757-3420
Internet: hcox@skantech.com
Admitted to CVA 5 June 1990
V E R I F I C A T I O N
STATE OF NORTH CAROLINA
COUNTY OF PITT
I, the undersigned, say:
1. I am an attorney who has been duly licensed to practice law in the courts of the State of North Carolina since _________, and am a member in good standing of the North Carolina State Bar. I am also a member of the Bar of the U.S. Court of Veterans Appeals, Federal Circuit Court of Appeals, the District of Columbia State Bar, and the U.S. District Court for the Eastern District of North Carolina.
2. I have read the attached Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and I know its contents. The facts stated in the Petition are true to my own personal knowledge, except as to those stated upon information and belief, which I believe to be true.
3. I declare under penalty of perjury that the above is true and correct.
EXECUTED on the _ day of ___, 1997, at Greenville, NC.
____________________________
Hugh D. Cox
Attorney at Law
Sworn to and subscribed before me this the following date:
_______________________________
_____________________________
Doris V. Tyson, Notary Public
My Commission expires: January 12, 1999
CERTIFICATE OF SERVICE (FOLLOWS BUT NOT INCLUDED)
1999 U.S. Vet. App. LEXIS 32, *
[NAME], PETITIONER, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
No. XX-XXXX
UNITED STATES COURT OF VETERANS APPEALS
1999 U.S. Vet. App. LEXIS XXXXX
January 1999, Decided
NOTICE: [*1] PURSUANT TO U.S. VET. APP. R. 28(i), THIS ACTION MAY NOT BE CITED AS PRECEDENT.
DISPOSITION: Petitioner's motion for extraordinary relief in the nature of mandamus DENIED and petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, DENIED.
CORE TERMS: mandamus, convalescent, Justice Act, issue a writ, indisputable, knee, extraordinary relief, surgery
JUDGES: Before WILLIAM P. GREENE, JR., Judge.
OPINIONBY: WILLIAM P. GREENE, JR.
OPINION: ORDER
On December 4, 1998, the petitioner filed a petition for extraordinary relief in the nature of mandamus, and a motion for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. As grounds for his petition, he asserts that on December 30, 1997, convalescent payments, awarded to him following a total knee replacement surgery, were terminated by the Winston-Salem, North Carolina, VA Regional Office (RO). He states that in March 1998, he sought assistance from the RO regarding the termination of his benefits, that in April 1998, he sought assistance from his congressman, and that in July 1998, he made application and sought benefits from the RO to continue his convalescence benefits. Also in July 1998, he requested that the VA Inspector General investigate this matter. In September [*2] 1998, the petitioner states that he required a second surgery on his knee. He states that to date, the RO has refused to issue a decision regarding reinstatement of his convalescent benefits. He requests that the Court issue a writ of mandamus compelling the RO to render a rating decision on his request for convalescent benefits so that he may pursue the appellate process, should that be necessary.
"The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976). Before a court may issue a writ, petitioners must demonstrate that: (1) they have a clear and indisputable right to the writ and (2) they lack adequate alternative means to obtain the relief they seek. Erspamer v. Derwinski, 1 Vet. App. 3, 9 (1990). The mere passage of time in reviewing a matter does not necessarily constitute the extraordinary circumstances requiring this Court to invoke its mandamus power. Bullock v. Brown, 7 Vet. App. 69 (1994). The delay involved, in this case only a matter of months since the formal application in July 1998, must be unreasonable before this Court will [*3] inject itself into VA's adjudicative process. The petitioner has neither shown a clear and indisputable right to the writ, nor alleged that administrative remedies have been exhausted.
On consideration of the foregoing, it is
ORDERED that the petitioner's motion for extraordinary relief in the nature of mandamus is DENIED. Accordingly, it is further
ORDERED that the petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, is DENIED.
Question
allan
IN THE UNITED STATES COURT OF VETERANS APPEALS
NAME OF VETERAN, )
)
Petitioner, )
)
v. ) VA File No. C 22 147 726
)
JESSE BROWN, )
Secretary of Veterans Affairs,)
)
Respondent. )
VERIFIED PETITION FOR EXTRAORDINARY RELIEF
IN THE NATURE OF A WRIT OF MANDAMUS
MOTION FOR ATTORNEY'S FEES, COSTS AND EXPENSES
UNDER EQUAL ACCESS TO JUSTICE ACT
Pursuant to U.S. Vet.App. R. 21, the Petitioner, NAME OF VETERAN, petitions this Court for extraordinary relief in the nature of a writ of mandamus, directed to Respondent, Jesse Brown, Secretary of Veterans Affairs, and its employees and agents in the United States Department of Veterans Affairs; specifically C. J. Matuszak, Adjudication Officer, Winston-Salem, North Carolina Department of Veterans Affairs Regional Office. This action seeks to compel the Adjudication Officer at the Winston-Salem Regional Office to issue a Statement of the Case to support denial or an unresolved issue in a pending claim on the merits concerning whether the Appellant has been paid correctly for past due benefits pursuant to that letter from the Department of Veterans Affairs dated May 10, 1995 as sent to the Appellant.
In the alternative, the Petitioner seeks a Rating Decision or Statement of the Case as to why the Appellant is not entitled to the money alleged by the Appellant and his counsel as set forth herein below. Further, this action seeks the opportunity to file a Petition for an award of attorney's fees, costs and expenses under § 2412 of Title 28, United States Code, the Equal Access to Justice Act, in that there is no regulatory justification for the agency of original jurisdiction (AOJ) and the AOJ refusal to issue payment of the monies, issue a Rating Decision, or in the alternative, issue a Statement of the Case.
In support of this verified petition, Petitioner alleges the following:
THE PARTIES
1. Petitioner, NAME OF VETERAN (hereafter the "veteran"), is a seventy percent (70%) service-connected disabled veteran who now receives individual unemployability and who resides in Bethel, North Carolina.
2. Respondent, Jesse Brown, is the Secretary for the United States Department of Veterans Affairs, and is named herein solely in his official capacity.
3. Respondent, C. J. Matuszak, is the Adjudication Officer in the Adjudication Section of the Winston-Salem, North Carolina Regional Office and is named herein solely in his official capacity.
JURISDICTION
4. This Court has jurisdiction over the subject matter of this action under the All-Writs Act, 28 U.S.C. § 1651(a), the general supervisory authority of the U.S. Court of Veterans Appeals over the VA and Board of Veterans' Appeals (BVA) conferred by the Veteran's Judicial Review Act of 1988, Public Law 100-687, 102 Stat. 4105 (11/18/88), 38 U.S.C. § 7251-7292, as amended, and in aid of the Court's potential jurisdiction over the Petitioner's future claims, 38 U.S.C. §§ 7252, 7261(a). Erspamer v. Derwinski, 1 Vet.App. 3 (1990). This Court has jurisdiction to award attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412), as do all courts established under Article I of the United States Constitution. See Essex Electro Engineers, Inc. v. U.S., 757 F. 2d 247, 251 (Fed.Cir. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (CMA 1989).
FACTS
1. On May 10, 1995, the Appellant received a letter from the Winston-Salem Regional Office assigning him certain schedular ratings for service-connected disabilities as set forth in the letter. Basically, the Appellant's bipolar pes planus with calluses was raised from 30% to 50% and the Appellant was granted depressive disorder for 30% for a combined total of 70%. Further, the Appellant was granted individual unemployability as a result of the pes planus or depressive disorder. Said letter is attached hereto as Exhibit A, containing three pages.
2. The Rating Decision granting such benefits containing three pages is attached hereto as Exhibit B.
3. On October 18, 1995, counsel for the Appellant gave notice of appeal to the Regional Office indicating that the Appellant had not been paid correctly based on calculations made at that time. A copy of said letter and calculations are attached hereto as Exhibit C.
4. A copy of the Appellant's contract with his counsel is attached hereto as Exhibit D.
5. On October 18, 1995, counsel for the veteran filed a motion to receive correct attorney's fees in disagreement with that Rating Decision of August 8, 1995, which denied attorney's fees to Appellant's counsel, attached hereto as Exhibit E.
6. On October 17, 1995, the veteran gave notice of appeal to the Board of Veterans' Appeals related to the issues that he had not been paid correctly nor had his issues ever been resolved. A copy is attached hereto as Exhibit F.
7. On October 17, 1995, the veteran submitted a Statement of Specific Issues related to the Veteran's Judicial Review Act and whether the Department of Veterans Affairs had acted in bad faith or deceit under the circumstances. A copy is attached hereto as Exhibit G.
8. On October 19, 1995, the Appellant signed a Notice of Disagreement or disagreement related to his appeal to the Board of Veterans' Appeals that he did not agree with the evaluation of his pes planus disagreement. Such issue has never been resolved as of this date.
9. The current status of said case is now before the United States Court of Veterans Appeals awaiting Appellee's response in the matter. The last action in said case before the United States Court of Veterans Appeals was Appellant's Unopposed Motion for Extension of Time until February 7, 1997 granted on January 9, 1997. Because of counsel's professional relationship with the 027C Group at the Office of the General Counsel, counsel has always readily granted motions for extension of time.
10. On February 25, 1997, the case entitled, "In the Matter of the Fee Agreement of James W. Stanley, Jr.", CVA 96-0017 was decided by the United States Court of Veterans Appeals specifically related to the issue of attorney's fees, payment thereof, and the relationship of 38 C.F.R. § 20.609© and 38 U.S.C. § 5904©.
11. On March 7, 1997, counsel moved for a Summary Reversal in said case based on the case entitled, "In the Matter of the Fee Agreement of James W. Stanley, Jr.,", as cited above and requested that the Court order the Department of Veterans Affairs to pay the 20% contingency fee owed to counsel since there was no issue.
To date, the Office of the General Counsel has not responded to said Motion.
ARGUMENT
General Law
As the Court noted in Erspamer v. Derwinski, 1 Vet.App. at 9-10, a petitioner seeking an extraordinary writ, such as a writ of mandamus, must demonstrate both a clear and indisputable entitlement to the writ and the lack of an adequate alternative means to obtain the requested relief. A writ of mandamus is a drastic remedy, one to be invoked in only extraordinary circumstances. In Re: Quigley, 1 Vet.App. 1 (1990). (Quoting from In the Matter of the Fee Agreement of Smith, 4 Vet.App. 487, 500 (1993))
Clear Entitlement to the Writ
As the facts demonstrate, the claim for correct payment of benefits pursuant to M21-1 to the veteran should not be in dispute by the General Counsel nor the Secretary. The Department of Veterans Affairs did not follow its own regulations regarding appropriate payment.
There is an administrative failure on the part of the Secretary to apply the correct statutory and regulatory provisions to the correct and relevant facts and correct payment per Oppenheimer v. Derwinski, 1 Vet.App. 370, 371 (1991). The failure of the DVA to follow the correct regulations is "[t]he sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992).
Clearly, the veteran gave Notice of Disagreement to the decision related to payment of his benefits within the one year period allowed by statute and by regulation.
The DVA continues to ignore the claim of the veteran for both increased benefits based on his pes planus as well as correct payment of his benefits.
A thorough examination of Title 38 of the Code of Federal Regulations reveals that the general guidelines for the Department of Veterans Affairs are required to give notification of decisions affecting benefits.
38 C.F.R. § 3.103(b) states:
(b) The right to notice-(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
38 C.F.R. § 3.103(f) further expands the requirements of notice stating:
(f) . . . The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of . . . the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal. . . .
This section of Title 38 of the United States Code requires that when making a decision "affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant, the Secretary shall, on a timely basis, provide to the claimant, (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision." 38 U.S.C. § 5104(a).
38 C.F.R. § 19.26 "Action by Agency of Original Jurisdiction on Notice of Disagreement," a regulation which governs the conduct of the VARO, states: "When a Notice of Disagreement is timely filed, the agency of original jurisdiction must reexamine the claim and determine if additional review or development is warranted. When a Notice of Disagreement is received following a multiple issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative. If no preliminary action is required, or when it is completed, the agency of original jurisdiction must prepare a Statement of the Case pursuant to 19.29 of this part, unless the matter is resolved by granting the benefits sought on appeal or the Notice of Disagreement is withdrawn by the appellant and his or her representative." (emphasis added) 38 C.F.R. § 19.27 notes: "If, within the agency of original jurisdiction, there is a question as to the adequacy of a Notice of Disagreement, the procedures for an administrative appeal must be followed." Finally, 38 C.F.R. § 19.25 requires that:
. . . the claimant and his or her representative, if any, will be informed of appellate rights. . . including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or non-entitlement to Department of Veterans Affairs benefits.
The agency of original jurisdiction has a regulatory obligation to notify claimants of appellate rights, to provide for an administrative appeal if the Notice of Disagreement is in question, or "must prepare a Statement of the Case" following the filing of an adequate Notice of Disagreement. The veteran has sufficiently clarified the issue which should be appealed. Furthermore, the VA has not requested additional review or development.
The veteran's counsel, unable to receive any response to his request for an SOC, is entitled by the statues and regulations to a decision.
There has been no question raised by the agency of original jurisdiction that the NOD is inadequate and that an administration appeal is necessary. The Department of Veterans Affairs has point blank refused to accept the veteran's NOD, leaving the veteran unable to perfect his appeal to the BVA as is his right under the governing regulations. The VA should have informed the veteran and his representative of any appellate rights, including the right to a personal hearing, and issued an SOC. The VARO continues to fail to comply with their own regulation by refusing to do so. The veteran would then be able to pursue further appellate review as is his right by responding with an appeal. The veteran is clearly entitled to the adjudication the RO is refusing to complete or provide.
Lack of Adequate Alternative Means
The veteran has been deprived of any further adjudicative process by which to contest the inactivity by the VARO. The statements contained in the October 18, 1995 correspondence are the veteran's position and the VARO has taken no action.
No SOC has been issued from which the veteran can now continue his appeal because the VA refuses to issue it despite the obligation to do so created by the statute. Petitioner/veteran has exhausted all available administrative remedies by filing appropriate requests for a decision on an unadjudicated issue, filing the mandatory NOD; further giving notice to the Regional Office that they had failed to render a decision on the unadjudicated issue and correct payments to the veteran. The Petitioner now files this petition for relief, which in and of itself is enough to bring this matter to the attention of the Secretary, and should effectively serve to exhaust any and all administrative remedies.
The Petitioner has the better of the legal argument as the VA has shown no statutory or regulatory authority to refuse to take the actions which they have refused to take and the veteran satisfies the All Writs Act test for extraordinary relief by carrying the burden of showing a clear and indisputable entitlement to the writ, and a lack of an adequate alternative means to obtain the requested relief. See Nagler v. Derwinski, 1 Vet.App. 297, 303 (1991).
Extraordinary Circumstances
It is understood that a writ of mandamus is a drastic remedy to be invoked only in extraordinary circumstances. The Court has noted that the use of the All Writs Act in connection with agency matters has been even more rare and the scope of relief granted in these cases has been narrow. Erspamer, 1 Vet.App. at 7. The Court has stated: "[t]he circumstances that will justify our interference with non-final agency action must be truly extraordinary, for this Court's supervisory province as to agencies is not as direct as our supervisory authority over trial courts." Id. Veteran's request for a writ of mandamus falls within these narrow guidelines. The Court has noted that "All Writs" jurisdiction is particularly applicable where, as here, an alleged refusal to act would forever frustrate the ability of a court to exercise its appellate jurisdiction. 'The Court clearly has the power to issue writs under the All Writs Act in aid of its prospective appellate jurisdiction in the face of action. . . that would frustrate such prospective appellate jurisdiction.' Margolis v. Banner, 599 F.2d at 440-441." Erspamer, 1 Vet.App. at 8. There is clearly a refusal by the Winston-Salem VARO to act by refusing to issue a Statement of the Case and to pay the veteran the money he is owed pursuant to the VA's own regulations. This is not merely a matter of a delay in taking administrative action, or in resolving the veteran's claim, or an inadvertent failure to comply.
Only the Court can now compel the agency of original jurisdiction to issue a Statement of the Case and to pay the veteran as he should be paid. The Court has recognized that sometimes a lawsuit is necessary as a "catalyst in prompting defendants to take action to meet plaintiff's claims. . . Lematta v. Brown, ___ Vet.App. ___, U.S. Vet.App. No. 93-923 (1/26/95). Failure to do so would forever frustrate the ability of the veteran to have his valid claim heard, and forever frustrate the ability of the Court to exercise its appellate jurisdiction.
This Court has power to award attorney fees, costs and expenses to the Petitioner under the EAJA (28 U.S.C. § 2412). This law has been applied to actions before courts created under Article I of the Constitution of the United States. See Essex Electro Engineers, Inc. v. U.S., 757 F.2d 247, 251 (Fed.Circ. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (Ct. of Mil. Appeals 1989). The actions of the Winston-Salem VARO are without a basis in law or fact. No possible compelling reason exists for the absolute refusal to issue a Statement of the Case or to pay the veteran the money he is owed. Therefore, counsel for veteran should be given the opportunity to file a petition for attorney fees, costs and expenses in this action, as required by 28 U.S.C. § 2412(d)(1)(B).
Nature of Relief Sought
This action seeks the Court to issue a writ of mandamus compelling the Winston-Salem VARO to render a Statement of the Case or in the alternative, to pay the veteran as he should be paid. In the present circumstance, the veteran cannot pursue appellate relief by the BVA, and if necessary, by this Court; or in the alternative, a formal rating decision with written notification of that decision, thus allowing the veteran to pursue appellate review or appeal to the Board of Veterans' Appeals.
This action also seeks the Court's allowance to file a petition for an award of attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412) in that there was no substantial justification, or support in regulation for the unreasonable refusal of the Winston-Salem VARO to issue a Rating Decision or a Statement of the Case in this matter.
CONCLUSION
It is respectfully requested that this Court issue an order directed to the Respondents and their counsel to answer Petitioner's Petition and show cause why the relief prayed for in this action should not be granted. Petitioner prays that a writ of mandamus be issued under the seal of this Court commanding the Respondents to produce a Rating Decision or a Statement of the Case based upon the Notice of Disagreement filed by the veteran/Petitioner, or in the alternative, command the Respondent to issue a Rating Decision in response to the veteran/Petitioner's claim; that the Court grant the Petitioner the opportunity to file a petition for an award of attorney fees, costs and expenses incurred in bringing this Petition, under the EAJA; and that the Court grant such other and further relief as may be just and proper.
Respectfully submitted this the ___ day of ______, 1997.
______________________________
Hugh D. Cox
NC Bar #6567
Attorney for Petitioner
321 Evans Street Mall Suite 102
P. O. Box 154
Greenville, NC 27835-0154
Telephone: (919) 757-3977
FAX: (919) 757-3420
Internet: hcox@skantech.com
Admitted to CVA 5 June 1990
V E R I F I C A T I O N
STATE OF NORTH CAROLINA
COUNTY OF PITT
I, the undersigned, say:
1. I am an attorney who has been duly licensed to practice law in the courts of the State of North Carolina since _________, and am a member in good standing of the North Carolina State Bar. I am also a member of the Bar of the U.S. Court of Veterans Appeals, Federal Circuit Court of Appeals, the District of Columbia State Bar, and the U.S. District Court for the Eastern District of North Carolina.
2. I have read the attached Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and I know its contents. The facts stated in the Petition are true to my own personal knowledge, except as to those stated upon information and belief, which I believe to be true.
3. I declare under penalty of perjury that the above is true and correct.
EXECUTED on the _ day of ___, 1997, at Greenville, NC.
____________________________
Hugh D. Cox
Attorney at Law
Sworn to and subscribed before me this the following date:
_______________________________
_____________________________
Doris V. Tyson, Notary Public
My Commission expires: January 12, 1999
CERTIFICATE OF SERVICE (FOLLOWS BUT NOT INCLUDED)
1999 U.S. Vet. App. LEXIS 32, *
[NAME], PETITIONER, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
No. XX-XXXX
UNITED STATES COURT OF VETERANS APPEALS
1999 U.S. Vet. App. LEXIS XXXXX
January 1999, Decided
NOTICE: [*1] PURSUANT TO U.S. VET. APP. R. 28(i), THIS ACTION MAY NOT BE CITED AS PRECEDENT.
DISPOSITION: Petitioner's motion for extraordinary relief in the nature of mandamus DENIED and petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, DENIED.
CORE TERMS: mandamus, convalescent, Justice Act, issue a writ, indisputable, knee, extraordinary relief, surgery
JUDGES: Before WILLIAM P. GREENE, JR., Judge.
OPINIONBY: WILLIAM P. GREENE, JR.
OPINION: ORDER
On December 4, 1998, the petitioner filed a petition for extraordinary relief in the nature of mandamus, and a motion for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. As grounds for his petition, he asserts that on December 30, 1997, convalescent payments, awarded to him following a total knee replacement surgery, were terminated by the Winston-Salem, North Carolina, VA Regional Office (RO). He states that in March 1998, he sought assistance from the RO regarding the termination of his benefits, that in April 1998, he sought assistance from his congressman, and that in July 1998, he made application and sought benefits from the RO to continue his convalescence benefits. Also in July 1998, he requested that the VA Inspector General investigate this matter. In September [*2] 1998, the petitioner states that he required a second surgery on his knee. He states that to date, the RO has refused to issue a decision regarding reinstatement of his convalescent benefits. He requests that the Court issue a writ of mandamus compelling the RO to render a rating decision on his request for convalescent benefits so that he may pursue the appellate process, should that be necessary.
"The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976). Before a court may issue a writ, petitioners must demonstrate that: (1) they have a clear and indisputable right to the writ and (2) they lack adequate alternative means to obtain the relief they seek. Erspamer v. Derwinski, 1 Vet. App. 3, 9 (1990). The mere passage of time in reviewing a matter does not necessarily constitute the extraordinary circumstances requiring this Court to invoke its mandamus power. Bullock v. Brown, 7 Vet. App. 69 (1994). The delay involved, in this case only a matter of months since the formal application in July 1998, must be unreasonable before this Court will [*3] inject itself into VA's adjudicative process. The petitioner has neither shown a clear and indisputable right to the writ, nor alleged that administrative remedies have been exhausted.
On consideration of the foregoing, it is
ORDERED that the petitioner's motion for extraordinary relief in the nature of mandamus is DENIED. Accordingly, it is further
ORDERED that the petitioner's motion to file for fees and expenses to be paid under the Equal Access to Justice Act, 28 U.S.C. § 2412, is DENIED.
DATED: January 6, 1999
BY THE COURT:
WILLIAM P. GREENE, JR.
Judge
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