Writerinos .......mandamus Question

[Berta]

A Writ Extraordinaire (Mandamus) must contain evidence of exhausting all available remedies.

That means the claimant has appellate rights they must exhaust.

However, this is a statement in emails I have just sent to those being served with the Writ and I have to contact the CAVC with a few questions, but will check out their web site first.

I know the Rules and Procedures but...there is a lot to preparing a writ...all of my evdience to be copied comes from the VA itself.

I am using this statement:

"I feel I can prove that I have exhausted all available remedies ,as a claimant , to have the Buffalo RO properly adjudicate my CUE claim and that they have violated the regulation I asked Ms Hickey for insurance, in email dated February 10,2015 to her,( and within subsequent emails to her, to Secretary McDonald and to the Buffalo VARO (all to be included as evidence for the Writ of Mandamus ) that would be properly applied to my CUE claim dated October 2012 , application of 38 CFR.4.6 to the 13 submissions they have of my evidence, still ignored at this point by the Buffalo VARO, as far as I know.

I am not a VA employee and therefore not able to physically teach VA RO employees how to read 38 CFR and M21-1MR, or how to read my evidence..."

I will submit to the court numerous recent VA decisions and past ones from the Buffalo VARO that reveal this has been the Status Quo in my regard, that this RO refuses to read my evidence, unless drastic steps are taken.....one documented example is the original FTCA Offset matter.....another is the BVA award of 2009 etc etc....

Also in the writ I have made the point that a viable NOD cannot be prepared on an illegal VA decision. Although I did send in a timely NOD as well as a NOD extension request...that I told the RO director I would appeal if denied, on that request, to the BVA.

Unless they properly award the claim based on the evidence they verified they have had for years..

My question is , someone else here maybe Broncovet, is preparing a writ too.......

How did you handle the 'exhaustion of all remedy 'part?

And Did you have to provide copies of all evidence with the Service on the Secretary, and the VARO as well as to the CAVC?

I am willing to get this to a Federal Circuit Court if denied by the CAVC.I assume I will have that appeal right too.

I know I am not the sole claimant this has happened to (continuous violation of 38 CFR 4.6) and I have years of past decisions to prove this is my ROs status Quo for every claim I filed in the past 20 years, all won after a battle....but why should anyone have to continually fight over their violations of 38 CFR?????

I am stating what I want the court to do and also asking it to be a precedent decision.

Edited May 19, 2015 by Berta

[Buck52]

A single letter, however, may not prompt the VA to act. When this happens, we have a tool we can use to prompt the VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans' Claims that assert that the Secretary of Veterans' Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force the VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to the VA threatening to file a writ petition. The letter should be sent by certified mail or to the fax number for the VA Regional Office to prove that the VA received the letter. The letter should state that, unless the VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the court. If the VA doesn't repond, the next step is to contact the VA Inspector General's Office and ask that they intervene.

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months to even a few years will not generally suffice, but a delay of more than a year or two may, depending on the circumstances.

A writ petition must provide a factually valid basis for the court to grant the petition. If so, the court will require the VA to respond to the writ within a short period of time – generally one month.

Ordinarily, the VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because the VA has taken the action it had refused previously to take. Although not technically a win on the petition, the VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, the VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the court will decide whether VA’s defense is valid. If not, the judges will order the VA to take the action requested. The VA is then under a court order to do so.

Although many writ petitions are filed, the court grants very few. In fact, since the court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

Category: Veterans Affairs

[Berta]

Thanks,

is this info from the VA or CAVC web site?

I forgot that I did win my claim that I had filed the writ aboput long ago, shortyly after my RO got a copy of it, bnut it was denied by COVA, yet maybe had some affect on the award.

"Before filing a writ petition, a letter should be sent to the VA threatening to file a writ petition."

I emailed Sec Bob, Ms. Hickey, and the Buffalo RO that this was my intent earlier today.

I wasn't sure if I should but ...why not....