Need To Vent

[hurryupnwait]

It's been 2 years and 7 months since my attorney, Kenn Carpenter, had a DRO hearing with no decision and no c&p in sight. The original hearing DRO retired in December, a new DRO has the claim as of last month. This is maddening!

Attorney is reviewing my case tomorrow. Writ of mandamus is what I want but he is saying that to write one involves a lot of work.

[justrluk]

I agree. After such a wait, there's no excuse for not responding. It seems that no matter what the Secretary and Congress mandate, the VA won't budge when it comes to speed or anything else. I have a Basset Hound like that. She has to be dragged to go outside, come back inside, and she always smells really bad - no matter how much she gets cleaned up. Seems to me, this is a good analogy to keep in mind. My appeal is at 2 years, 3 months, 1 day by my counter (not that I’m obsessing about this ;->), but nothing like waiting for a response AFTER the decision has been made... that’s just inexcusable.

[Pete53]

Jim Strickland has put up recent info on Writs of Mandamus and VA.

[grent]

It's been 2 years and 7 months since my attorney, Kenn Carpenter, had a DRO hearing with no decision and no c&p in sight. The original hearing DRO retired in December, a new DRO has the claim as of last month. This is maddening!

Attorney is reviewing my case tomorrow. Writ of mandamus is what I want but he is saying that to write one involves a lot of work.

HOW DO FEEL ABOUT ATTORNEY KARL KAZMIERCZAK? THNKS GtT

[allan]

Pete,

could you post a link to Jim Stricklands Writ of Mandamus information? Been looking but can't seem to find it.

My SO advises against it, but if I haven't recieved an SOC in 60 days I'm sending in the written notice i'm filing the writ. Not going to let them string me out for decades like they've been doing. It's not complecated. All they have to do is rate the loss of range of motion they failed to rate the first time around 15 months ago. I've already had the C&P and MRI on the shoulder. This was remanded by the BVA to rate in May 2009. They still can't get it together.

[Pete53]

Allan

Its a Facebook url which requires membership. Have you tried his website?

Pete

[broncovet]

I have filed a Writ. First, you should send a letter to the RO "Intent to file a Writ". ...and then explain exactly why you are intending to file a Writ. My "intent" letter was similar to the Writ.

Writs are filed with the CAVC. There is a $50 filing fee, but that is regurarly waived, basically if you ask for a waiver and cant afford the $50.

The REason Writs seems to work so well is that the judge usually asks the VSCM, or his or her designee, to respond to the Writ. This is very embarrasing to the VSCM as it is the equivilant of "calling them on the carpet".

When the judge asks them to respond, that means a lot more than when you or I do. Do not be suprised if the attorney representing the VA asks for an extension of 30 days to respond to the Writ.

Then you should wait for their response 60 days. The reason is the CAVC likes to know that you have tried everything else...A Writ of Mandamus is only applicable when you have tried everything else.

The CAVC clearly has the power to issue extraordinary writs to VA officials under the All Writs Act.156 However, because the purpose of the AWA is to aid a court in protecting its jurisdiction, the first question to be resolved whenever a party seeks a writ from a court is whether the subject of the writ is within the court�s jurisdiction. Under 38 U.S.C.S � 7252, the CAVC�s jurisdiction is limited to review of final Board decisions. Accordingly, the CAVC does not have the power to issue an extraordinary writ unless the writ pertains to actions or inactions by VA officials that will lead to a final BVA decision over which the CAVC would eventually have jurisdiction.157

Yi v. Principi158 illustrates this principle. In that case, the veteran complained that officials at a VA medical center had not redacted certain information from his medical records. The CAVC concluded that �the petitioner�s complaint is with actions by VA�s G[eneral] C[ounsel] surrounding an agreement apparently not related to any pending claim or Board decision thereon.�159 The Court held that it could not grant the veteran�s request for an extraordinary writ because the actions the veteran was challenging would not later become the subject of a final Board decision.160 Accordingly, a writ under these circumstances would not be in aid of the Court�s �prospective jurisdiction.�161 The Court issued a writ requiring the Secretary of Veterans Affairs to issue a statement of the case in both Bates v. Nicholson162 and Woznick v. Nicholson.163 The Court was compelled by the Federal Circuit to issue the writ it issued in Bates.164 The writ issued by the Court in Woznick was the sole product of the CAVC.165

The Court has ruled that even when it has the power to issue a writ, �the circumstances that would justify the issuance of . . . a writ must be compelling.�166 The Court will issue a writ if three conditions are satisfied: (1) the petitioner has shown that his or her right to the writ is �clear and indisputable�167 (because, for example, the VA has plainly violated or is threatening to violate rights of the petitioner protected by law); (2) the petitioner has shown that he or she lacks adequate alternative means to obtain the relief the CAVC is asked to provide168; and (3) the Court, in the exercise of its discretion, is satisfied that the writ is appropriate under the circumstances.169 For example, in Ribaudo v. Nicholson,170 the Court granted a petition for a writ after the Chairman of the Board of Veterans� Appeals unilaterally imposed a stay upon all pending BVA cases affected by a CAVC decision pending the outcome of the Secretary�s appeal of the CAVC decision to the Federal Circuit, effectively nullifying the legal effect of the judicial decision. The CAVC granted the writ rescinding the BVA Chairman�s stay directive and holding that the Chairman�s action, without first obtaining judicial approval for the act, would leave claimants without means to challenge the action.171

Unreasonable delays by the VA in handling an individual claim may be grounds for petitioning the CAVC for a writ under the All Writs Act. The Court has held that the VA is obligated to issue a decision on a claim within a reasonable period of time.172 In one case, the Court ruled that the VARO had unreasonably delayed by failing to comply, by the beginning of 1990, with the BVA�s instructions in remanding a case in both 1984 and 1987 for development of additional evidence.173 In another case, Vargas-Gonzalez v. Principi,174 the Court held that it could issue a writ of mandamus to compel the Secretary to provide expeditious treatment as required by the Veterans� Benefits Improvements Act (VBIA)175 to a case that had been remanded by the CAVC to the BVA for further adjudication on a claim for pension benefits.176

However, the Court has shown extraordinary reluctance to issue extraordinary writs even when there has been substantial delay by the VA in adjudicating an individual�s claim.177 It has held that in delay cases, �a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on the resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.�178 Nonetheless, when the VA unduly delays in processing a claim, the advocate should seriously consider filing in the CAVC a petition for an extraordinary writ. The mere filing of the petition often causes the VA to take the action it has been delaying in order to avoid defending the delay in court. For example, in one case, a great deal of time had passed after the filing of a NOD without the VARO having prepared a Statement of the Case. The claimant petitioned the Court for an extraordinary writ requiring the VARO to issue an SOC expeditiously. Before the Court even had time to address the petition, the petitioner had achieved the goal: the VARO issued an SOC.179

Delay is not the only occasion for considering whether to request the CAVC to issue an extraordinary writ. Whenever the VA has violated or threatens to violate a claimant�s rights during the course of processing a claim, an extraordinary writ is a possible alternative. For example, the Court has held that it could issue a writ to prohibit the VA from retaliating against a veteran who had filed an appeal to CAVC by scheduling the veteran for a medical examination to determine whether his or her disability rating should be reduced.180

The key question the Court is likely to ask in a non-delay case, however, is why should the Court not wait until the BVA has issued a final decision in the case and then address whether the VA violated the veteran�s rights in the course of deciding the appeal of the BVA decision to the CAVC. In other words, the Court may deny the petition on the ground that the claimant failed to exhaust his or her administrative remedies (that is, appealing the case to the BVA).181 The advocate may be able to avoid this result by documenting the severity of the injury to the claimant that would be caused by waiting until the BVA decides the case and by showing that an appeal to the BVA would probably be futile. In this type of situation the Court requires a showing that the delay in waiting for a BVA decision would result in irreparable injury.182

The appellant filed a writ of mandamus with the CAVC seeking, inter alia, an order from the CAVC directing the Secretary to handle his claim in an expeditious manner. The CAVC held that the veteran had satisfied both requirements for a writ. Id. at 232. He satisfied the first element by establishing that he had a clear right to the writ. The CAVC held that � 302 of the VBIA extends to �the subsequent adjudication of all elements of a claim when any element of that claim is remanded by the Court or the Board.� Id. at 228. Accordingly, the VBIA � 302 requirement for expeditious treatment included not only the issue of entitlement to pension, but also extended to the issue of the effective date of the pension clam. Id. at 232. Because the Court found that the veteran had exhausted all available administrative remedies he satisfied the second requirement for a writ. The Court held that having written to the Board requesting that it expedite his case, �[w]e are unaware of any additional action that the petitioner could have taken that might realistically have advanced consideration of his appeal to the Board.� Id. The Court did not grant the veteran a writ because while the petition for a writ was pending before the Court, the Board issued a decision remanding the effective date issue back to the VARO for further adjudication. The Board�s remand decision expressly required that VBIA � 302 treatment be applied to the remanded claim. Accordingly, the CAVC held that since �the petitioner is now receiving from VA the VBIA � 302 treatment to which he was already entitled by virtue of this Court�s April 1999 remand opinion. . . . The request for the issuance of a writ of mandamus by this Court, then, is moot.� Id.In Dailey v. Principi, 17 Vet. App. 61 (2003), the CAVC rejected the veteran�s argument that he had an indisputable right to a writ in a case in which the petitioner argued that in order to provide him with �expeditious treatment� of his remanded claim under the VBIA, the BVA should advance his case on their docket. The Court held that �expeditious treatment� under the VBIA and advancement on the BVA docket were separate and distinct concepts, and that the veteran had not demonstrated that he was entitled to advancement on the BVA docket under the statutory criteria that governed advancement on the BVA docket. Id. at 67. Additionally, the CAVC held that the veteran had not shown that the BVA had not handled his case expeditiously under the VBIA. Id. To the contrary, the Court noted that the BVA had acted quickly in processing the petitioner�s claim. Id.

177.. See Nash v. Brown, 11 Vet. App. 91, 93 (1998) (per curiam order) (CAVC denied writ in case involving four remands by the Board to the VARO, remarking that �the delay involved, although frustrating to the petitioner, must be unreasonable under all circumstances before the Court will inject itself into the administrative agency�s adjudicative process�); Chandler v. Brown, 10 Vet. App. 175, 177-178 (1997) (per curiam order) (delay of two and one-half years was not unreasonable); Bullock v. Brown, 7 Vet. App. 69, 69 (1994) (per curiam order) (�mere passage of time in reviewing a matter does not necessarily constitute extraordinary circumstances requiring this Court to invoke its mandamus power�). Not only has the Court been reluctant to grant extraordinary petitions, it has also been extremely reluctant to set deadlines by which the VA must satisfy Court remand orders. Dambach v. Principi, 14 Vet. App. 307 (2001) illustrates the CAVC�s extreme reluctance. In Dambach, the Federal Circuit reversed a decision of the CAVC. Dambach v. Gober 223 F.3d 1376 (Fed. Cir. 2000). The Federal Circuit noted that the case had been on appeal for more than seven years, in part due to the VA�s reliance upon an inaccurate medical expert opinion. Id. at 1381. Further, the Federal Circuit noted that the case had to be remanded yet again, in part, to determine if another medical opinion solicited by the VA complied with 38 U.S.C.S � 7109. The Federal Circuit stated, �we believe it is time for this case to be concluded, especially given the veteran�s poor health.� Id. Therefore, the Court stated that �it would be appropriate for the Veterans Court to set a deadline by which this veteran�s case will be concluded.� Id. On remand, the CAVC nonetheless refused to set a deadline. The Court stated:This Court is not part of the Department of Veterans Affairs and its administrative machinery. We are not privy to the caseloads, the number of remands taking precedence over this case, and the relative priorities established at the BVA or the regional offices. Nor do we know whether such an order might well displace other, perhaps even more deserving, cases. . . . To impose an arbitrary date without the slightest clue as to whether such a date was either reasonable or appropriate would be wrong.

Dambach v. Principi, 14 Vet. App. 307, 308 (2001). The most that the Court was willing to do was �to urge the Secretary to move this case with all the energy and dispatch he can. . . .� Id.178. Stratford v. Peake, 22 Vet. App. 313, 314 (2008) (citing Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order)).

179. See Mokal v. Derwinski, 1 Vet. App. 12, 14 (1990). See also Chandler v. Brown, 10 Vet. App. 175, 177 (1997); Ebert v. Brown, 4 Vet. App. 434, 437 (1993); Grant v. Nicholson, Vet. App. No. 07-0527 (Aug. 24, 2007) (unpublished order denying a petition for a writ filed to compel the VARO to issue a SOC where the SOC was finally issued two days prior to the date oral argument was scheduled in the case before CAVC).

180. See Snyder, 14 Vet. App. at 165; Moore v. Derwinski, 1 Vet. App. 83 (1990).

181. See In the Matter of a Letter from Michael Quigley, 1 Vet. App. 1 (1990) (dismissing a petition for an extraordinary writ to prohibit the VA from revoking the veteran�s fee basis card entitling him to specific medical benefits on the ground that he had failed, among other things, to seek review of the matter at the BVA). See also Matter of Cox, 10 Vet. App. 361, 373-74 (1997); Steffens v. Brown, 8 Vet. App. 142, 144 (1995).

182. See Kaplan v. Brown, 7 Vet. App. 425, 428 (1995) (per curiam order).

15.2.6.1 How to File a Petition for an Extraordinary Writ

Rule 21 of the rules of the CAVC183 discusses the procedure to be followed in filing a petition for an extraordinary writ. Among the documents that must be filed are copies of those parts of the claims file �necessary to understand the petition.�184 The petitioner should keep in mind that the CAVC does not have access to the VA�s claims file. The only way the Court will know about these documents is if the petitioner includes copies of them with the petition.

Often, copies of relevant documents in the claims file will not be enough to make a proper showing to the Court. For example, all of the important facts may not be adequately reflected in these documents. Accordingly, the advocate should consider filing affidavits from individuals with personal knowledge about events that are not adequately reflected in the claims file. In addition, in an effort to show that the petitioner will suffer irreparable, or at least very serious, harm if the petition is denied allowing the case to proceed to a final BVA decision, affidavits should be filed attesting to the harm that is likely to occur.

** Advocacy Tip ** Before you can file a writ, you must create a record of good faith efforts to resolve the matter with the agency. You will want to create a paper trail to append to the writ to demonstrate your efforts to exhaust your administrative remedies.