Writ Of Mandamus-what Is It

[Berta]

This topic was moved and I could not find it to reply directly to it-

A Writ of Mandamus is a petition to the US Court of Veterans Appeals -usually to have them take action to get your claim decided faster.

BUT- you have to have exhausted every potential thing you could do- to get action on your claim.

I filed a Writ of Mandamus many years ago that was denied by the Court- but I sent to RO a copy of it and

at the same time I was actively pressuring the RO to read my medical evidence.I did receive those awards but I have no idea if the mandamus helped at all.

I am preparing another Writ of MAndamus- their are quidelines at the CAVC web site that must be followed in preparing this legal document.

Make sure you ask them to waive the filing fees-they usually always do that-

I have a better standing for a writ now then I did 10 years ago-

Maybe this will show what I mean--

I filed a claim involving a legal issue in January 2003.

The legal issue grew out of the recent Bonny V. Principi decision.Then the VA developed regs on this widow's claim that forgot an allowance for consideration of Sec 1151 widows under the Bonny regs.

I challenged that.

The Buffalo RO VSM stated in mail twice since 2003 that I would receive an administrative decision.

I never received a VCAA letter on this and no decision ever came.

I wrote to General Counsel asking them to opine on this as a legal question.

They wrote back that without any direction from the RO and without my receipt of any decision at all-they had no jurisdiction.

This claim is among my other claims that a rater has now.

They said a decision is pending on all of them.

If the decision again fails to include this claim re: Bonny V Principi- I will file a Writ of Mandamus as this would show that over 4 years have passed and the VA has failled to decide the claim at all.

I can show the court that I took steps to get the OGC to decide the legal aspect and they couldnt. Also I can show the court a copy of letter I sent to the VA -Regulations Division-

asking that this reg be amended to include all Section 1151 widows and widowers.

I dont know the outcome of that yet.

My long point is -a Writ of Mandamus has nothing to do with merits of a claim or evidence.

Writs can compel to VA to take steps that the claimant has exhausted in attempting to get a decision.

(Snyder V Gober, Bates V. Nicholson.)

Writs can also force VA to comply with expeditious treatment .(Vargas V Gonzales V Principi)

The format at the CAVC web site must be followed in preparing a writ.

You must tell the court what steps you have taken to rectify the problem.

Your argument must be "compelling" Erspamer V. Derwinski

Your argument must be based on establlished VA case law- (Bates V. Nicholson -forcing the RO to issue a SOC)

You must have exhausted all other avenues of rectifying the situation and be able to prove to the court what steps you have taken.

The writ should be short and to the point.

I suggest to anyone considering this action to purchase the VBM and read carefully their info on Writs.

Or go to the CAVC web site and read Writs there.

99 % of these writs fails- yet if they are preared properly they can get the RO to move.

Send a copy of the writ to the RO also.

[Pete53]

Berta:

Our mutual Prodigy Friend Alex Humpfrey used to point out that the Writ of Mandamus almsot always jogged the VA into action. The VA is determined not to have the Court Order it to do their job.

You can count on a properly executed writ to move your claim in 30 days or so. They will always ask for more time and Alex used to say not to give it to them.

I am surprised that Veterans do not use the Writ more often.

A caveat is that although it will force a decision it does not necessarily mean it will be the one that you are looking for.

I also think that the AMC and moving claims from one VARO in holding actions is another attempt of the VA to slow down claims. Of course just hoping the Vet does not push them is their most used tactic.

Once you file the Writ things will start to happen. Maybe when you can hire a lawyer next month things will change.

Good Luck