HadIt.com Elder allan Posted May 14, 2009 HadIt.com Elder Share Posted May 14, 2009 (edited) UNITED STATES COURT OF VETERANS APPEALS No. 96-1171 Jack E. Chandler, Petitioner, v. Jesse Brown, Secretary Of Veterans Affairs, Respondent. Before KRAMER, FARLEY, and IVERS, Judges. O R D E R In May 1994 this Court granted the parties' joint motion for remand of the March 25, 1993, Board of Veterans' Appeals (BVA) decision, vacated the decision, and remanded the matter for compliance with the motion for remand. From June 1994 to September 1996 VA requested records from various sources outside of its control. On September 13, 1996, the veteran filed a petition for extraordinary relief in the nature of mandamus contending that VA had taken more than two and a half years after remand to formulate a decision which still had not been rendered. On October 21, 1996, the Secretary filed his answer to the veteran's petition, asserting that the two-and-a-half-year delay in adjudicating the veteran's claim was not unreasonable and was beyond the control of the BVA or regional office (RO). On November 12, 1996, the Court ordered the parties to submit memoranda addressing the options available to the Court and to the parties in resolving the issue raised in the petition. In December 1996 the Secretary and the veteran submitted their memoranda. Attached to the Secretary's memorandum was a Supplemental Statement of the Case (SSOC) which recounted that the veteran's claims had been readjudicated and denied. Section 302 of the Veterans' Benefits Improvements Act of 1994 (VBIA) requires the Secretary of Veterans Affairs to take any necessary action to provide for the expeditious treatment, by the BVA and the ROs, of any claim that has been remanded by the BVA or by this Court for additional development or other appropriate action. Pub.L. 103-446 302, 108 Stat. 4645, 4658 (1994). The All Writs Act provides that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. 1651(a). This Court has jurisdiction under the All Writs Act. Herrmann v. Brown, 8 Vet.App. 60 ( 1995); Bullock v. Brown, 7 Vet.App. 69 (1994); Nagler v. Derwinski, 1 Vet. App. 297 (1991); Mokal v. Derwinski, 1 Vet.App. 12 (1990); Erspamer v. Derwinski, 1 Vet.App. 3 (1990). However, "circumstances that would justify the issuance of such a writ must be compelling." Erspamer, 1 Vet. App. at 7. As Judge, now Justice, Kennedy observed in Public Utility Commissioner of Oregon v. Bonneville Power Administration, Use of the All Writs Act in connection with agency matters has been even more rare and the scope of relief granted in these cases has been narrow. The circumstances that will justify our interference with nonfinal agency action must be truly extraordinary, for this court's supervisory province as to agencies is not as direct as our supervisory authority over the trial courts. 767 F.2d 622, 630 (9th Cir. 1985); see also Herrmann, 8 Vet.App. at 62; Nagler, 1 Vet.App. at 302-03; Erspamer, 1 Vet.App. at 7-8. "The exercise of this [All Writs Act] power . . . extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected." FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966) ( quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943)); see also Erspamer, 1 Vet.App. at 8. "The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402 (1976). Before the Court can issue a writ of mandamus the petitioner must show that: (1) he is clearly entitled to the writ; and (2) he lacks adequate alternative means to obtain the relief he seeks. Herrmann, Nagler, and Erspamer, all supra. The petitioner must show that his right to issuance of the writ is "clear and indisputable." Erspamer, 1 Vet.App. at 9 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting United States v. Duell, 172 U.S. 576, 582 (1899 ))). "While there is no absolute definition of what is reasonable time, we know that it may encompass `months, occasionally a year or two, but not several years or a decade.'" Erspamer, 1 Vet.App. at 10; cf., Steffens v. Brown, 8 Vet.App. 142, 144 (1995) (VA's delay in the vast majority of cases, in which nearly two years elapses between the Notice of Disagreement and the BVA hearing, while frustrating, is not so extraordinary as to justify the Court's exercise of its All Writs power); In re Monroe Communications Corp., 840 F.2d 942 (D.C.Cir. 1988) (five-year delay in agency action not so great as to be subject to mandamus). The Secretary argues that the controversy surrounding the petition is moot because the SSOC was issued. In Mokal, the Court held that it no longer had jurisdiction when the delayed SSOC was issued and it therefore dismissed the petition for mootness. Mokal, 1 Vet.App. at 15; see also Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order) ( dismissing cases as moot because the relief sought, the issuance of SOCs, had been accomplished without the need for action by the Court); Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) ("[w]hen there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction"). Thus, to the extent that the petitioner's petition is predicated on the RO's failure to readjudicate the petitioner's claims, the petition is moot. The petitioner's counsel argues that the Secretary should be required to resolve veterans' claims within six months of a Court-ordered remand. The petitioner requests, however, that the Court decide his claim, or in the alternative, that the Court direct VA to decide the claim within 30 days and that the Court grant interim benefits and retain jurisdiction until VA complies with its order. Fully developing a veteran's case so that his claims can be adequately adjudicated may take time if VA must obtain records beyond its control. In Bullock and Erspamer, this Court indicated its reluctance to interfere in VA's adjudication process. Bullock and Espamer, both supra. The Court is sympathetic to the veteran's frustration regarding the two- and-a-half (now almost three) year delay, but delay must be unreasonable before a Court will interfere with an administrative agency's adjudication process. See Bullock and Erspamer, both supra. It is inherent in all matters that are remanded to the BVA that a remand is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the `reasons or bases' requirement" of 38 U.S.C. 7104(d)(1) "and that, generally, on remand, the BVA is expected to reexamine the evidence of record, [and] seek any other evidence the Board feels is necessary . . . ." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). Finally, the petitioner asserts that the records the RO requested from various hospitals pursuant to the BVA remand were not actually obtained but rather, the hospitals sent the wrong records, which constituted, according to the Statement of the Case, the basis for the RO's denial. That denial, however, is presently before the BVA and therefore, the petitioner has not exhausted administrative remedies available to him. See Mokal, 1 Vet.App. at 15. In view of the delay already experienced in this case, the Court notes that the statutory duty to expedite remanded matters applies to the BVA as well as to agencies of original jurisdiction. On consideration of the foregoing, it is ORDERED that the veteran's petition for extraordinary relief in the form of mandamus is DENIED. DATED: April 1, 1997 PER CURIAM. Source: http://search.vetapp.gov/isysquery/2a9f7f2...9b558ba5/2/doc/ Edited May 14, 2009 by allan Link to comment Share on other sites More sharing options...
HadIt.com Elder Pete53 Posted May 14, 2009 HadIt.com Elder Share Posted May 14, 2009 Wow he filed for Mandamus 3 and 1/2 years from date he filed. I wonder what would happen if 900,000 Veterans with back logged claims all filed on same day? Veterans deserve real choice for their health care. Link to comment Share on other sites More sharing options...
Berta Posted May 14, 2009 Share Posted May 14, 2009 In 1994 that WAS a very long time for a decision- these days it is nothing- Last night Edwin Crosby said at SVR radio that there are now 900,000 plus- claims pending GRADUATE ! Nov 2nd 2007 American Military University ! When thousands of Americans faced annihilation in the 1800s Chief Osceola's response to his people, the Seminoles, was simply "They(the US Army)have guns, but so do we." Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we. Link to comment Share on other sites More sharing options...
Moderator broncovet Posted May 14, 2009 Moderator Share Posted May 14, 2009 I filed a writ alleging a 6 year delay which was also denied. Bottom LINE: VETERANS have a time table, that is, if we file a NOD 367 days after the decision, it is too late. THE VA, however, can take an unlimited amount of time to delay the claim, again and again. The VA has a list of excuses they can use..which one would you like to hear? ITS all about the money! You see, when the VA delays the claim, sometimes 30 years (Yes, 30 years!..I know a Veteran who filed in 1973..and even with congressional intervention, the VA in Cleveland wont budge) the VA essentially borrows money from its Veterans, interest free! Even worse, if the Veteran dies before the claim is "processed", the loan from the Veteran to the VA is forgiven as the Veteran's heirs cant collect! There is a financial incentive for the VA to delay, delay, and delay some more, as they use the Veterans money, interest free. I wish I could get an interest free loan! Link to comment Share on other sites More sharing options...
Moderator broncovet Posted May 14, 2009 Moderator Share Posted May 14, 2009 Berta I think the ONLY way to speed up the claims process is to hit the VA in the pocketbook! As long as they get interest free loans from Veterans by delaying their claims, the claims are going to move at a snails pace. If the Va had to pay 15% interest, however, on any claim over a year, then watch em move on claims over a year! I dont think it is legal for the Va to charge us interest on VA loans, late payments on copays for prescriptions etc., and then fail to compensate Veterans interest on our money! This is a big deal. I think you should appeal your retro claim, asking for interest, and I am thinking of doing the same, mainly to help other Vets, as this would surely set a precedent if we won, which would almost certainly be decided by the supreme court, probably 15 years from now. Link to comment Share on other sites More sharing options...
HadIt.com Elder Pete53 Posted May 14, 2009 HadIt.com Elder Share Posted May 14, 2009 Bronco: Believe me I know where you are coming from but I will say this and maybe give you hope. If a Veteran sticks by their guns the VA will eventually yield. Not easy but it happens. Once you have it they are good at getting you your money. The VAMC I go to is much better than when I started. Even though the VA is tough on deadlines and they are slow on claims at least a Veteran like me can fiule a claim 22 years after I left service and win the claim. I don't know of anyone else that does this. For a claim to win you need good medical evidence, you have to ask for what you want and its best to cite the regs that the VA should use. Its sort of like Hansel and Gretel showing the way for the VA to follow the crumbs to award the claim. Veterans deserve real choice for their health care. Link to comment Share on other sites More sharing options...
HadIt.com Elder tagandbag Posted May 15, 2009 HadIt.com Elder Share Posted May 15, 2009 Bronco and anyone else. I agree with most everthing on how the VA will drags out the process and delays and delays. But there are some things I disagree with. I don't see how any money is yours before you win a claim with the VA. To me its like counting the chickens before the eggs hatch. You will notice that when a claim is awarded, the monies are deposited immediatley in most cases. Another thing that puzzles me is how the VA can budget for claims awards. My guess is they budget a small percentage of monies because they take so long and maybe a small percentage of claims are awarded. It seems sort of set up like a ponzi scheme and when 800,000 claims are pending and how many of those are Iraq/Afhganistan veterans whose claims will be decided faster, than the older claims pending. If the VA were more efficient with their claims award time and the way they budget, the system would implode. Does any one know how many claims an RO or DRO handle in one year? 800,000 claims pending and how many RO and DRO's are working these claims. Also I wonder how many RO's there are in the VA. For instance lets take fifty varo's at 100 hundred ro's each = 5000. Take 5000/ 800,000= 160 claims each RO is handling. This a guess....and I would think impossible for any RO to and finish a claim in a timely manner, no less than another 159 claims in a year. I would like to have some faith in the system, but pessimism and distrust is winning over and almost feels like I was back in 1971. T&B " In my many years I have come to a conclusion that one useless man is a shame, two is a law firm and three or more is a Congress" - John Adams Link to comment Share on other sites More sharing options...
Question
allan
UNITED STATES COURT OF VETERANS APPEALS
No.
96-1171
Jack E. Chandler, Petitioner,
v.
Jesse Brown,
Secretary Of Veterans Affairs, Respondent.
Before KRAMER, FARLEY, and IVERS, Judges.
O R D E R
In May 1994 this Court granted the parties' joint motion for remand
of the March 25, 1993, Board of Veterans' Appeals (BVA) decision, vacated
the decision, and remanded the matter for compliance with the motion for
remand. From June 1994 to September 1996 VA requested records from
various sources outside of its control. On September 13, 1996, the
veteran filed a petition for extraordinary relief in the nature of
mandamus contending that VA had taken more than two and a half years after
remand to formulate a decision which still had not been rendered. On
October 21, 1996, the Secretary filed his answer to the veteran's petition,
asserting that the two-and-a-half-year delay in adjudicating the veteran's
claim was not unreasonable and was beyond the control of the BVA or
regional office (RO). On November 12, 1996, the Court ordered the parties
to submit memoranda addressing the options available to the Court and to
the parties in resolving the issue raised in the petition. In December
1996 the Secretary and the veteran submitted their memoranda. Attached to
the Secretary's memorandum was a Supplemental Statement of the Case (SSOC)
which recounted that the veteran's claims had been readjudicated and
denied.
Section 302 of the Veterans' Benefits Improvements Act of 1994 (VBIA)
requires the Secretary of Veterans Affairs to take any necessary action to
provide for the expeditious treatment, by the BVA and the ROs, of any
claim that has been remanded by the BVA or by this Court for additional
development or other appropriate action. Pub.L. 103-446 302, 108 Stat.
4645, 4658 (1994). The All Writs Act provides that "all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law." 28 U.S.C. 1651(a). This Court has
jurisdiction under the All Writs Act. Herrmann v. Brown, 8 Vet.App. 60 (
1995); Bullock v. Brown, 7 Vet.App. 69 (1994); Nagler v. Derwinski, 1 Vet.
App. 297 (1991); Mokal v. Derwinski, 1 Vet.App. 12 (1990); Erspamer v.
Derwinski, 1 Vet.App. 3 (1990). However, "circumstances that would
justify the issuance of such a writ must be compelling." Erspamer, 1 Vet.
App. at 7. As Judge, now Justice, Kennedy observed in Public Utility
Commissioner of Oregon v. Bonneville Power Administration,
Use of the All Writs Act in connection with agency matters has been
even more rare and the scope of relief granted in these cases has
been narrow. The circumstances that will justify our interference
with nonfinal agency action must be truly extraordinary, for this
court's supervisory province as to agencies is not as direct as our
supervisory authority over the trial courts.
767 F.2d 622, 630 (9th Cir. 1985); see also Herrmann, 8 Vet.App. at 62;
Nagler, 1 Vet.App. at 302-03; Erspamer, 1 Vet.App. at 7-8. "The exercise
of this [All Writs Act] power . . . extends to the potential jurisdiction
of the appellate court where an appeal is not then pending but may be
later perfected." FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966) (
quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943)); see also
Erspamer, 1 Vet.App. at 8.
"The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations." Kerr v. United States District Court, 426 U.S.
394, 402 (1976). Before the Court can issue a writ of mandamus the
petitioner must show that: (1) he is clearly entitled to the writ; and (2)
he lacks adequate alternative means to obtain the relief he seeks.
Herrmann, Nagler, and Erspamer, all supra. The petitioner must show that
his right to issuance of the writ is "clear and indisputable." Erspamer,
1 Vet.App. at 9 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S.
379, 384 (1953) (quoting United States v. Duell, 172 U.S. 576, 582 (1899
))). "While there is no absolute definition of what is reasonable time,
we know that it may encompass `months, occasionally a year or two, but not
several years or a decade.'" Erspamer, 1 Vet.App. at 10; cf., Steffens v.
Brown, 8 Vet.App. 142, 144 (1995) (VA's delay in the vast majority of
cases, in which nearly two years elapses between the Notice of
Disagreement and the BVA hearing, while frustrating, is not so
extraordinary as to justify the Court's exercise of its All Writs power);
In re Monroe Communications Corp., 840 F.2d 942 (D.C.Cir. 1988) (five-year
delay in agency action not so great as to be subject to mandamus).
The Secretary argues that the controversy surrounding the petition is
moot because the SSOC was issued. In Mokal, the Court held that it no
longer had jurisdiction when the delayed SSOC was issued and it
therefore dismissed the petition for mootness. Mokal, 1 Vet.App. at 15;
see also Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order) (
dismissing cases as moot because the relief sought, the issuance of SOCs,
had been accomplished without the need for action by the Court); Bond v.
Derwinski, 2 Vet.App. 376, 377 (1992) ("[w]hen there is no case or
controversy, or when a once live case or controversy becomes moot, the
Court lacks jurisdiction"). Thus, to the extent that the petitioner's
petition is predicated on the RO's failure to readjudicate the
petitioner's claims, the petition is moot.
The petitioner's counsel argues that the Secretary should be required
to resolve veterans' claims within six months of a Court-ordered remand.
The petitioner requests, however, that the Court decide his claim, or
in the alternative, that the Court direct VA to
decide the claim within 30 days and that the Court grant interim benefits
and retain jurisdiction until VA complies with its order.
Fully developing a veteran's case so that his claims can be
adequately adjudicated may take time if VA must obtain records beyond its
control. In Bullock and Erspamer, this Court indicated its reluctance to
interfere in VA's adjudication process. Bullock and Espamer, both supra.
The Court is sympathetic to the veteran's frustration regarding the two-
and-a-half (now almost three) year delay, but delay must be unreasonable
before a Court will interfere with an administrative agency's adjudication
process. See Bullock and Erspamer, both supra. It is inherent in all
matters that are remanded to the BVA that a remand is not "merely for the
purposes of rewriting the opinion so that it will superficially comply
with the `reasons or bases' requirement" of 38 U.S.C. 7104(d)(1) "and
that, generally, on remand, the BVA is expected to reexamine the evidence
of record, [and] seek any other evidence the Board feels is necessary
. . . ." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
Finally, the petitioner asserts that the records the RO requested
from various hospitals pursuant to the BVA remand were not actually
obtained but rather, the hospitals sent the wrong records, which
constituted, according to the Statement of the Case, the basis for the
RO's denial. That denial, however, is presently before the BVA and
therefore, the petitioner has not exhausted administrative remedies
available to him. See Mokal, 1 Vet.App. at 15. In view of the delay
already experienced in this case, the Court notes that the statutory duty
to expedite remanded matters applies to the BVA as well as to agencies of
original jurisdiction.
On consideration of the foregoing, it is
ORDERED that the veteran's petition for extraordinary relief in the
form of mandamus is DENIED.
DATED: April 1, 1997 PER CURIAM.
Source: http://search.vetapp.gov/isysquery/2a9f7f2...9b558ba5/2/doc/
Edited by allanLink to comment
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