More On Writs Of Mandamus

[vaf]

When is the appeals process truly "exhausted" and qualifies for a writ of mandamus?

We had two claims at the VARO, denied, NOD issued, went to the Board in 2003, Board decided to remand in August 2005, remand went to the AMC, and there it still sits today.

Judging from what Berta and Pete said in a previous post, I'm confused as to whether the AMC has carte blanche privilege to hold on to this remand as long as it likes, or if we can consider the process "exhausted" after 24 months and threaten to ask the Court for a writ of mandamus without causing ourselves more harm than good.

Any opinions? Time to do something or just sit still and wait for awhile longer?

[Josephine]

Vaf,

Is your file at the AMC in the " Ready to Rate" ?

I know that they have held up my claim countless times waiting for a meaningless piece of paper.

You may wish to insist upon speaking to one of the Supervisors and find this out.

I know that I advanced on the docket at the BVA. I went there in January and was remanded to the AMC in April 2006.

I have been in the ready to rate for 4 months.

I call the BVA and ask them "Aren't I suspose to advance at the AMC also.

I am told absolutely yes.

I gave to go into my lock box to get the piece of paper sent to me by the BVA and fax it to the AMC as someone dropped the ball and did not place that Orange piece of paper on my claims folder.

No, I do not have a terminal illness, I am not 70 years of age and I do not live in Poverty.

I sat down and wrote a 11 page letter to the BVA when my claim went to the BVA and showed them all the negligence that my claim has been through since my first filing date of 1978.

I recieved a letter from the BVA from the Deputy Vice Chairman - March 06, 2006 that I would be advancing.

Now if the Deputy that called me yesterday from the BVA is telling me the truth, which, I feel that she is, I should soon have an answer after spending most of my life trying to prove a claim.

I am guessing that they are holding your claim up for something. You need to find out what and try to give it to them.

Always,

Josephine

Edited August 17, 2007 by Josephine

[hurryupnwait]

My file was remanded to the AMC on June 24th, 2005. I just called this morning to verify where my file was. In April, it was sent back to the development area by a rating specialist for paperwork that they already had. Another copy was sent to them via fax and certified mail within days. Now, I understand that my file is in a store room waiting for further development.

In May, I requested a complete copy of my file. I m still waiting for that to be done.

I have my Congressman sending letters monthly to the AMC, but I m not sure if that helps much because it seems to add another step in the process, because AMC has added the Congressman s office for mailing notices.

I d like to find out more about this writ of mandamus?

[vaf]

We were told several months ago that the remand had been rated, but the rater was new, inexperienced, and the AMC decided to have someone with more experience review the decision. Last week we were told by Ernest at the AMC that his screen showed the remand was being sent to the raters. So, it's been rated already, but we don't know if that decision, whatever it was, stuck or may be changed. I've been told by an attorney that the Writ of Mandamus in our case won't work, because the remand never reached the Court level. Which, in his judgement, is the only way the veteran can "exhaust" the process. We are about to contact the Congress Critters, etc., to see if they can encourage a response sooner than later.

[Berta]

I agree with the point the attorney made-and I feel asking a Congressperson to help is usually a waste of time-guaranteed to add even more time to the resolve of the claim.

Then again 2 years is a long time to be at the AMC-have you made an inquiry via the VA iris system as to exactly where the claim is and it's status?

You certainly can try a Writ of Mandamus however-

last night Mike Davis , Vietnam Combat Veterans, ltd. called me up to discuss Erspamer- a good example of a writ under the ALL Writs Act-

the VA had failed for a decade to take action on the Erspamer claim.

I suggest however looking up Bates V Nicholson- the federal circuit court compelled the VA to act in the Bates case and also Woznick V Nichsolson - a writ of mandamus that succeeded at the CAVC.

The regulations are at the CAVC site as to the proper court filings of this type of writ.

I filed a Mandamus writ years ago-and sent a copy to the VARO- within 6 months my claims were resolved but I still believe that the claims were awarded due to the evidence -as the court had denied the writ.

I dont think the RO paid any attention at all to it.

Mike DAvis , a great advocate for vets in Texas and I are of the same opinion however that a writ -well prepared and that comforms to the legal requirements of the CAVC does show the RO that the claimant is aware that there are different avenues of approach that they will not hesitate to use.

I have a claim that -by Jan will have been at the RO for 5 years without any decision at all.

The RO has promised me twice in writing a decision would be made.

Since this specific claim involves a legal issue question-that no one at the RO has the expertise to comprehend or decide-I believe it should have been sent to General COunsel long ago.

I wrote to General Counsel asking for a legal opinion but they wrote back that without me getting a decision or without them getting any direction from the RO they could not nothing at that point to resolve the legal question issue.

If no decision comes on this specific claim with the pending decisions on 2 of my other claims- I will file a Writ of Mandamus and post it here as a template.

My initial AO death claim has been -except for a few weeks illegally at the BVA-

at the Buffalo VARO for over 4 1/2 years.

Unfortunately claims are taking years to resolve what used to take months.

If you feel a writ could help you- by all means file one but make sure it conforms to the US CAVC Rules of Procedure-

and ask them to waive the filing fee- they almost always will waive it.

Edited August 21, 2007 by Berta