Reasonable Time To Wait Before Filing A Second Writ Of Mandamus?

[vaf]

I filed a Writ of Mandamus request with the Court in April 2008, against the Appeals Management Center, to force a decision on a remand that had been kicked around the VARO between 2001 to 2005, and then to the AMC from 2005 until we filed the Writ. OK, we achieved our purpose, we received an SSOC from the AMC, which was then returned to the Board. We disagreed with that decision, sent our response to the AMC and copied the Board. That was five months ago. We IRIS'ed the Board to get the status, but was told they could not tell us the status, that cases are taken in the order in which they're received (we had a docket number from 2001, so we know this isn't true).

How long is a reasonable amount of time to wait before I file another Writ request with the Court, this time against the Board?

[Pete53]

Maybe start by sending a letter telling them that if you don't get something in 30 days you will file a Writ. Make it 15 if you are in a hurry. At least you know that it works.

Good Luck

[vaf]

Yes Pete, writ requests do work. Ours was denied, but only after we forced the AMC to make a decision so we could get it out of there. We accomplished that, which is why the judge then denied the request.

My expectation is that the Board will agree with this denial. I just don't want to wait another six months to hear a decision. We already have an attorney at the Court regarding another appeal, I want him to handle this one, as well, but he can't before it reaches the Court because it's been in the mill prior to June 2007.

Thank you for telling me I'm not unreasonable to believe that time's up on this...

[broncovet]

I filed a writ in 2007. Writs are pretty much regularly denied..I could not find a single writ that had been granted in my research. I do not recommend a second writ, and I will explain my reasoning. But, first, I need to ask?

Did the judge in your writ order them to respond?

They did in my writ, and I found the Secretary's response to the writ most helpfull in ultimately winning my claim.

You see, the RO can pretty much feed you with any amount of bull..they can tell you in IRIS that your claim is at the rater, when it isnt, etc.

However, they are accountable in their testimony to the judge, because that testimony becomes a permanent part of the record, and, if you find out that testimony is false, then that RO manager is in a fair amount of hot water.

Pay very close attention to the Secretary's response.

A Writ was not as effective in winning my claim as was a complaint to the VAOIG at the hotline. I complained the RO shredded evidence, and those shredded documents were the compelling reason for my lowered ratings.

The VAOIG responded to my complaint, in a "form letter" in about 2 months. They told me to contact the RO and tell them "my documents were shredded". When I did so, neither IRIS nor the phone center knew anything about the VAOIG complaint, nor what to do about it. I was very, very frustrated, and planning my next action when, boom..I got a DRO Review decision which was favorable.

I think my complaint went to the RO manager...and (s)he did not want the VAOIG breathing down her neck, so, action was taken.

IN short, my advice is: Skip Writ #2 and complain to the VAOIG instead:

I recommend your VAOIG complaint be limited to one or two pages, and concisely and carefully written..not a "rant", with precise documented examples "Hit them with your best shot"

[vaf]

Yes, the judge ordered them to respond. The first time, he gave the AMC 30 days. The response did not address the question, which was basically explaining what possible justification the VARO and then the AMC had for allowing the claim to languish in remanded status since 2001. We wanted the AMC to immediately issue an SSOC, and wanted to know when that would happen. They didn't answer that question, either, and the judge stated as much. He then gave the AMC another 30 days to answer the question. The VA responded with a "White Paper," which was basically a historical review of the VA's handling of the claim to date. The AMC then stated the C & P's that had occurred were too old, and that new ones were needed. The judge then gave the AMC another 60 days to schedule C & P's and what not, which did in fact take place. The AMC then rendered a decision in October 2008 (we filed the writ request in April 2008), and we then forwarded a disagreement and rebuttal to the AMC and the Board, and with the exception of an IRIS response from the Board telling us they can't tell us when they're going to reach a decision, we've heard nothing back since the SSOC we received in November 2008.

I don't think the VA shredded anything in our case, they just put my husband's stuff on the back burner because we're talking about 10 years of retro compensation that would be the difference between 90% and 100%. They're obviously dragging their feet on that because of the amount of money involved if we win. I'm loathe to send anything back to the VARO, they're the ones who first sat on this remand for four years, before the Board took it out of their hands and sent it to the AMC, where it again sat for three years. I believe if I hadn't filed the writ request, it would still be there without a decision.

But thank you, I do appreciate your input -- you don't give up, either and I like that!

[Berta]

Writs of Mandamus can succeed - in very few cases however.

It appears to me that the VA did act on the original writ and denied again-and you are at the BVA.

Writs of Mandamus require exhaustion of every administrative anenue of approach.

If the VA responded to the first writ-and it appears that they did- Mandamus isnt going to make the docket at the BVA shrink any faster with a new writ.

My opinion only-

I was thinking of preparing a writ until I did get my BVA remand.

I would have had to prove I had exhausted all administrative remedies but I still did have remedies left.

The BVA is an administrative remedy-meaning the claim is still actively pending and the BVA doesnt take anyone out of the queue

(unless maybe in extraordinary death bed cases)

"My expectation is that the Board will agree with this denial" You can continue to submit evidence until the very minute the BVA signs off on it.

[vaf]

Understood, Berta. This remand has a docket number of 94-36 158A, which reflects the year of the original date of claim, however, the first Board remand occurred in March 2001. A quick review of the Board website indicates they're making final decisions on appeals much newer than ours.

I don't know what remedies we have left if the remand is back at the Board and again in limbo. All we are looking for is a final decision from the Board (whether they agree or disagree with the AMC), so we can either accept it or appeal it to the Court, where we can finally put it in an attorney's hands.

The IRIS response we received gave the Board open-ended accommodation to decide this whenever they so choose. Even with such an early docket number.