Mandamus Petitions

[Berta]

I saw this come up here somewhere and have a few key points on Writs of Mandamus-aka Writ Extraordinaire-

basically this is a writ that falls under the All Writs Act, that asks the court to make the VA do something.

Most Mandamus petitions at CAVC are requesting the court to get the RO to move on making a decision.

They are usually denied.

But there are reasons they are denied.

The full case law and requirements of a petition for Mandamus can be found at the CAVC web site.

I filed one many years ago that was denied because I had not exhausted all avenues of approach through the VA claims process yet-

the court was right.

I got a little tougher and the VARO granted my claims.I think this old petition is still listed at the CAVC web site.

My claims are being addressed and have been in the rating board for a long time.

That is I think they are based on 800 info.

One of those claims is an unusual claim under Bonny V Principi.I have bored you all already with its premise.

The VARO by mail promised me twice that I would receive an "administrative decision" on the Bonny claim.VA and I call it the Bonny claim.I never received a VCAA letter on it and they only promised VCAA letters on my CUE claims (never received of course -as CUE claims dont legally get VCAA letters)

If no decision is again made on my Bonny claim-since 4 1/2 years have passed since filing it- I will prepare a Petition Extraordinaire on it and post it here as a template when I send it to the court.It might help others.

I have to prove that I have exhausted all avenues of approach.

If VA promises a decision in documentation and then does not send a decision after many years -this is one point I will make-

however I also wrote to the General COunsel to accept this claim as a legal question issue.

They do that from time to time.

But this is a request that comes from the VARO -that they decide a legal issue that impacts on a claim.

GC sent me a nice letter indicating that they have no jurisdiction at this point to do that.My VARO never asked them for an opinion on this legal issue that Bonny is about.

I tried and it makes sense what they said-but the point is -I took an additional avenue of approach.

Also in a public comment I made to a proposed new regulations affecting veterans-

I asked that the VA by virtue of the new proposed reg (forget which one right this minute) that the VA could also rectify the unfairness of Bonny to a certain class of widows or widowers that were denied legal consideration and thus were adversely affected under the Bonny V Principi regulations -as they write the new proposed regulations.

One more documented avenue of approach I took-

If I could come up with something else before I find out if my Bonny claim has been decided or again ignored by VA (they have NOT denied it at all)

I will do that too- to satisfy my point of mandamus-if I can pull some rabbit out of a hat there-

the veterans or widow has to attempt to get the matter resolved themselves for a scenario of mandamus to kick in.

A claim that sits at a RO for many years with no resolve at all can be the basis for a legitimate mandamus writ.

But the CAVC could say to the petitioner that he or she did not take steps themselves to get the claim resolved. ???

Also I have documentation regarding my POAs responses - a total lack of comprehension or concern over what this claim is even about.

So that avenue of approach- to get a decision via the POA -only results in Bonny who?

I can use that documentation too-as evidence for the writ to be granted.

I can also suggest that it would be inappropriate to get a billboard put up across from the RO asking them to decide my Bonny claim.But perhaps an editorial letter in the Buffalo times asking for a decision on a claim sitting there for over 4 years already would help.

My long point here since this issue came up at hadit recently is that there must be considerable merit supported with evidence to file a Writ of Mandamus and have it succeed.

Some HAVE succeeded.

I feel a claimant should consider this as a last result gesture but by all means do what I did and send the RO a copy of any writ you file-

although the CAVC denied my old writ with good cause- the RO realised I was no dummy that was willing to take their BS and along with considerable other steps I took -my older claims were all awarded.

The reality is -it might take a battle and it might take years to get an award- but the VA mitigates the need for writs- 99% of the time if the vet can last long enough to see their proper award.

If you do feel a writ is in order (and the new lawyer regs also successfully eliminated addressing this potential way a lawyer could help to resolve a claim)

But lawyers will see your contact info on the CAVC docket-anyhow - 10- 12 of them called me or wrote to me to see what my docket matter at the CAVC was all about.

make sure you follow the CAVC guidelines to the letter at the CAVC web site and ask them for a waiver on the filing fees which they almost always grant.

Edited June 21, 2007 by Berta

[Pete53]

Berta:

Alex Humpfrey explained how to make a Writ work. Please remember that this is from memory but I will attempt to paraphrase Alex and hopefully at least hit the high points.

After your claim has gathered dust and not moved for 18 months at any point in the VA Circus of delays it is time to consider a Writ of Mandamus. Alex's first step is to write the offensive party and state how long he has been waiting and that in 30 days he is planning to file a Writ of Mandamus in order to get relief. After the 30 days if nothing has happened he writes a second letter giving them 14 days and than he files the Writ.

He says the VA always responds with a decision before they have to explain to the Court why they have not moved on the claim. I believe that Bill Mercer told us that the VA asked for more time and he gave them 30 days and than refused to give more time and soon after was 100%.

So the point being is that to perfect a Writ of Mandamus you need to show that you have waited a long time, the VA is causing harm by the delay and that you have attempted to be reasonable. Its sort of like the three legs of a claim to win.

Good Luck

PS I think that you should file a Writ after 4 years and the VA promise that they would make a decision.

Edited June 21, 2007 by Pete53

[Berta]

These are excellent points here Pete -thanks-

one thing in my situation is- I just called the RO- an appeals specialist is taking quite sometime to address the SMC CUE issues and the AO direct SC death claim.Someone else also checks their work-it seems -based on what one or 2 other reps told me-

These have been in rating board since my remand-

the 800 rep asked why the remand occurred and I had to rattled off that the VARO committed legal error in even sending the AO claim to the BVA in the first place.

They also added an additional claim to the BVA transfer -one that they have also never decided yet-

so I sure dont want to upset the VA applecart with a writ at this time but if the pending decision (the rep said Bonny claim was off the PC screen)

if it fails to again be addressed in the next correspondence or decisionI get from VA-

a writ will be filed.

I do feel that someone is certainly assessing the SMR CUEs very carefully- in my opinion my AO death claim at this point with the evidence I have and also established VA case law regarding the type of evidence I have ----- is a cake walk and easy to decide.

I sure dont want to get anyones underwear into a knot yet with a writ if they truly are assessing the evidence properly.

But the proper AO decision opens another big bag of worms for VA and as I mentioned even NVLSP never heard of anything like this AO claim.

What I never considered when I filed my AO death claim-in 2003-is the potential of it -$$$$wise due to the Nehmer decision.

I am a category one (I think) Nehmer AO widow.

Edited June 21, 2007 by Berta

[Pete53]

Berta:

Its your claim. I was just trying to say that the VA is taking way to long. I think that you are going to win.

Good Luck

[Berta]

You are right Pete-

it has taken way too long-

I just think many if us -when at a critical juncture-like when we think they are actually working on our claims- hesitate to do anything to get it off a raters desk-

then again I had until June 30th to file NODS on two Cue decisions. I got them mailed yesterday (making sure the lawyer regs were in place first )

However I have been consistently told that these CUES are part of the rating they are doing now.

So I wonder if those NODS will hold things up more-

The AO death claim they are working on and the SMC accrued all go together anyhow.

I woke up at 5 :30 this AM-the sunrises are beautiful in the hills-

next thing I know-instead of enjoying my coffee and watching the fog llift from the valleys-I was thinking-just how many claimants out there have waiting for YEARS and years.

Local vets always ask me how long Buffalo Takes- I always say between 3 months to 3 years-

three years is acceptable-4 1/2 isnt.

Men and women- if you have followed my situation you know the problems with my claim lie greatly with lousy representation-documented lousy representation-

I intend to make sure that does not happen to others here in NYS under same POA and have taken many significant steps to do that.

Edited June 22, 2007 by Berta

[Josephine]

Berta,

You are absolutely correct. When I had the chance to file a formal complaint with the General Council pertaining to my last C&P, I did not do it for, " fear of delaying my claim by 6 months."

This was the time that I was told by the Council that my claim would be delayed. Now, where am I?

The statue of limitations has ran out and this has been over two years ago.

Josephine

[Pete53]

Berta:

Glad that you got your NOD's off in time. Maybe that was the plan in the first place to let your time run out?

I remember our old friend MT Skull who fought the VA for 22 years until Kim the Party of the Second Part hired a Lawyer and they won 100% and 22 years of back pay at 100%.

Sometimes the VA forgets who they are dealing with. We are all survivors and will fight for what is right. That is our nature.

You will prevail as you have before.

It is evidence and determination that wins cases and you have both.

Josephine:

I know that this has been a tough road for you but I think that you will win your claim also.