Writ Of Mandamus

[broncovet]

B) Is anyone interested in a Writ of Mandamus that I wrote? If I get enough people interested, I am considering posting it even tho I do not know if it is "successful" or not because I just filed it last week. I am not a lawyer, but this is my take on the writ:

It is for "extrordinary measures", not just your plain garden variety claims. I filed a writ, in part, because the VARO in Cleveland took absolutely NO action on my NOD filed in March, 2004. No Statement of Case, no nothing. In the Writ, I am seeking to Compel the VARO to make a decision on an informal claim filed in July, 2002.

The Writ is when nothing else works. If you are unhappy with the Regional Office decision, file a NOD, not a writ. If it has been more than a year since your RO decision, then you need to try to prove CUE, as an appeal on a claim where the decision was more than a year ago will fail, unless you can prove CUE. If you are unhappy with a BVA decision, file an appeal with the Court of Veterans Claims.

In my particular case, I received a very favorable decision from the BVA but the Cleveland RO simply failed to implement it. It makes no sense to appeal a decision favorable to the Veteran. However, when the Regional Office takes it upon themself to attempt to circumvent the law by just "blowing off" the BVA, I feel the writ was justified.

The courts have ruled that the "VA is not free to ignore its own regulations". :P In my writ, I am suggesting it is the Court of Veterans Claims that is the "police" for the VARO to compel them to follow their own laws.

By the way, I have had a difference of opinion with some people on here, which turned into some rather heated posts. If these individuals elect to use these posts as a way to further cut me down, all of you :D will pay, as I simply will not post the writ which may well do a lot of you some good, especially if nothing else has worked with your claim. I am here to try to help other Veterans, and I am not all that interested in defending myself from people who wish to attack me. Yes, I think there are definately some changes to the status quo that need to be made, and I have expressed opinions on some of these changes that have ruffled a few feathers.

[Tbird]

if you decide to post your writ please make sure to delete any personal identifying information.

my opinion is you should wait to see if it wins, that way the writ you put up can be perfected.

B) Is anyone interested in a Writ of Mandamus that I wrote? If I get enough people interested, I am considering posting it even tho I do not know if it is "successful" or not because I just filed it last week. I am not a lawyer, but this is my take on the writ:

It is for "extrordinary measures", not just your plain garden variety claims. I filed a writ, in part, because the VARO in Cleveland took absolutely NO action on my NOD filed in March, 2004. No Statement of Case, no nothing. In the Writ, I am seeking to Compel the VARO to make a decision on an informal claim filed in July, 2002.

The Writ is when nothing else works. If you are unhappy with the Regional Office decision, file a NOD, not a writ. If it has been more than a year since your RO decision, then you need to try to prove CUE, as an appeal on a claim where the decision was more than a year ago will fail, unless you can prove CUE. If you are unhappy with a BVA decision, file an appeal with the Court of Veterans Claims.

In my particular case, I received a very favorable decision from the BVA but the Cleveland RO simply failed to implement it. It makes no sense to appeal a decision favorable to the Veteran. However, when the Regional Office takes it upon themself to attempt to circumvent the law by just "blowing off" the BVA, I feel the writ was justified.

The courts have ruled that the "VA is not free to ignore its own regulations". :P In my writ, I am suggesting it is the Court of Veterans Claims that is the "police" for the VARO to compel them to follow their own laws.

By the way, I have had a difference of opinion with some people on here, which turned into some rather heated posts. If these individuals elect to use these posts as a way to further cut me down, all of you :D will pay, as I simply will not post the writ which may well do a lot of you some good, especially if nothing else has worked with your claim. I am here to try to help other Veterans, and I am not all that interested in defending myself from people who wish to attack me. Yes, I think there are definately some changes to the status quo that need to be made, and I have expressed opinions on some of these changes that have ruffled a few feathers.

[Pete53]

Most Writs win but not officially. They make the VA move and make a decision. The past record is the VA will ask for extensions but will come in under the wire before the Judge makes a ruling preserving their claim or boast that they have not lost a Writ.

There are several Hadit Members who were somewhat successful with a Writ of Mandamus.

One piece of advice is to make a Writ more effective you should write the VA and advise or warn of your intention to file a Writ if a decision is not made in 30 days and possibly even another 15 day notice. This presents a better face to a Judge. Remember that a Writ is a petition to ask a Judge to make the VA do their job.

Good Luck

[broncovet]

Thanks Tbird and Pete, your suggestions are appreciated. I probably will wait a while before posting the writ, as Tbird suggested. However, if anyone out there is so, so, frustrated, and thinks a writ may work for them, they may email me and I will try to send it to them personally.ASAP, before I know whether or not it worked.

I did talk to the clerk at the CAVC yesterday. (You file a writ through the Court of Veterans Claims, not the Regional Office) He said that the filing fee for a writ is $50 BUT he says it is waived for pretty much anyone who asks that it be waived. That is, if you think you can afford the $50, pay it, but if you think you cant, ask that it be waived. AS was already mentioned, if you are considering a writ, the VERY First thing you do is order a copy of your Cfile if you dont already have it. (It may take some time, it took over 6 months for me to get my Cfile) You ask for a copy of your Cfile, in writing at your VARO. It may help to cite the freedom of Information act, even tho I did not.

Then, if you are filing the writ yourself (that is, without an attorney), as about 70% of the Writs, you need to do your homework: Research similar cases as yours at the CAVC. Especially important are

Precedent cases. Hadit has great stuff on important cases. Precedent Opinions, issued by the General Counsel, are good too, but make sure that they havent been superseeded..that is, a newer Precedent opinion has been issued that pretty much nullifies superseded precedent opinions. It will say, on the opinion, if it was superseded or not.

Now, on the WHEN to file a writ. IMHO , you should consider a Writ when everything else failed and you can document that your Regional Office (or BVA) violated policies and regulations. Remember, you may have to really LOOK for those Regulations they violated in delaying/denying your claim. If you are considering a CUE claim, or an appeal, file those first, instead of the Writ. And, as was already suggested, write the VARO and send them notice of impending writ, as I did. I will update you with some "juicy" case law that is often helpfull to Veterans. I think a lot of times the Regional Office develops the Veterans claim to a MINIMUM, so they can pay less. They can not do that, according to the following case:

VA is ˜to fully and sympathetically develop the veterans claim to its optimum before

deciding it on its merits."

Roberson, 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998))