When Everything else fails; File a Writ

[broncovet]

Remember Popeye?  He used to say, "That's all I can stand, I can't stand no more!"  He had a can of spinach, and it was all over for the stronger Brutus.

Well, the Writ of Mandamus is the can of spinach.  Incidently, this is not a hypothesis for me, I filed a Writ Pro Se in 2008.  

Chris Attig explains why the Writ of Mandamus works:

https://www.veteranslawblog.org/writ-of-mandamus/

In part:

If They are Always Getting “Mooted”, Why is the Petition for Writ of Mandamus so Effective?

Petitions for Writ of Mandamus at the Veterans Court are effective because nobody wants to talk about the Elephant in the Room.

Here’s what the various players would have to talk about if they were to ever decide a “Writ”:

VA:  They’d have to demonstrate what IS  a reasonable amount of time for a Veteran to wait for VA action – and then hold true to their word to avoid future problems. The VA is so scared of this argument it will move heaven and earth to take action and moot the Writ.

Exhibit A:  In the Veteran’s case, above, the Veteran filed for the Writ on June 5, 2014; the VA committed to gathering medical evidence, scheduling a C&P and issuing a decision on the Remand Order in 56 days – by July 31, 2o14.  

COURT:  No Judge wants to write a decision saying how long is a reasonable period of time for a Veteran to wait for action.  And most assuredly not a Judge in an Article I Court: such an action would invariably be seen as both a check –  an attack, if you will – on the Executive branch by a non-Article III Court, or, as some court observers point out, encroaches on the role of Congress.

Even beyond that, the Veterans Court is in, as they say, a bit of a pickle.

The prospect of issuing a Writ is, to the Veterans Court, akin to what “Texting While Driving” is to the driver of an 18-wheeler – the minute you start typing, the minute you should know you are going to make a huge mess.

In the Gulley decision, the Court was gentle in its denial of a Petition for Writ of Mandamus: “although the Court understands the [Veteran’s] frustration, the delay involved must be unreasonable before a Court will inject itself [into the VA’s process].”

VETERAN:  This poor guy doesn’t even really care – he’s just using the process because it’s there.  He just wants a darn decision in his case – he may just need to make a house payment or keep the lights on another month – he doesn’t want to waste time arguing what timelines are reasonable.  Especially not after wasting years dealing with dilatory and borderline ridiculous and unsupported arguments at the VBA, the BVA, and before the Office of General Counsel.

From what I can tell from the limited docket available online in this case, the Veteran did exactly what he needed to: he argued just enough about how the “Board seems to have indefinitely delayed the proceeding of [the] case, no the strength of being backlogged, with no specific time frame set for deciding [the] claim”.  That argument, right there, is the first domino that sets the rest falling.

What do all these arguments have in common?

For very different reasons, all the players in this game want to avoid a debate over what is, and is not, a reasonable amount of time for a Veteran to wait for the VA to take action.

There is a Storm Brewing at the Veterans Court Over the Writ Process.

In a 2014 single judge decision, Hamblin v. Gibson, the Court talked about the so-called “Writ Effect” and  how the Veteran wins  by losing:

The Veterans Court said:  “…the RO has adjudicated the petitioner’s claims at issue only after a petition has been filed, which creates a perception that incentivizes the filings of petitions and burdens the Court.” 

Listen to the subtext here – the Court is telling Veterans to bear the burden of what is sometimes a decade long wait for benefits rather than suggest that the Veterans Court might bear the burden of adjudicating Petitions for Writ of Mandamus.  When I read that line, here’s what I heard:  “You wait.  We don’t have the resources to help Veterans.”  Is that what the Court intended to say?  Is it an objectively reasonable interpolation? I don’t know…but as a Veteran, that just about amounts to a slap in the face.

Not every Judge agrees with this conclusion.

One Judge, in a dissent in the Young case a couple years back, suggested that, if a Veteran was not satisfied with a Board Referral decision, that Veteran could use the Writ Process to get “…expedited processing more quickly than a successful appeal to the Court.”  

(Note: A Referral Decision from the BVA is NOT a Remand Decision – the BVA refers cases back to the Regional Office when it feels it doesn’t have jurisdiction.  It remands when it needs to develop more evidence to make a decision.)

In other words – and I could be way off base here – there appears to be a growing schism in the Court over Writs: the Young dissent seems to encourage the very Writ process that the Hamblin Court is wanting to discourage.

Some of my friends in the Veterans’ Bar have taken issue with the statement of the Veterans’ Court in the Hamblindecision: many attorneys see it as an attack on Veterans for using the legal tools available to get the relief that they need.

Maybe those attorneys are right.

For a system that is designed to help those that “bore the battle”, there is an awful lot of anger at Veterans at the VBA, the BVA and the VA OGC.

Or maybe the Hamblin verbiage was just a shot across the bow –  a warning if you will.

My question is this – to whom was that “warning shot” directed?

Maybe it was  a warning to the Executive Branch: when the Veterans Court sees you – time and time again – issue a decision in 56 days under “threat of writ”, it is frustrated that THEIR docket is clogged with claims taking YOU 3 years.

Maybe it was a warning to Congress: fixing the rules of this process is your “gig”. The Court isn’t going to exhaust its resources while you sit idly by and don’t rein in this dysfunctional system.

Or maybe it wasn’t a warning at all.   Courts often know their own limitations and, as suggested above, maybe this Court is aware of its own – though neither the OGC nor the Veterans Bar seem to have pieced it all together yet.

But in the end, does it matter who it’s warning?

Everybody seems really content with the stalemate:

1) Congress isn’t going to act; the last time a Court sent the Legislature a “hint” in a Veteran’s Writ Case that actually worked – near as I can tell – was in Hayburn’s Case in 1792.

2) The VA is never going to willingly change its own adjudication process….more than that, though, the actions it told the Hamblin Court it was taking are, largely, going to have NO effect on claims processing times and the Veterans Court won’t remember this in 2 years or 5 years or 10 years.

3) Veterans will continue to file Writ Petitions since they work

What will break the stalemate is  the private bar – say what you will about attorneys, but historically, we are the defenders and champions of justice.

Eventually, we will push for a Judicial check and balance on the VA Hamster Wheel….. maybe a Veteran will come into Court in with a set of facts that becomes a tipping point and a Writ of Mandamus will have to issue …. or an Article III court will issue the Writ that an Article I court won’t…. or maybe someone will try to Mandamus the Veterans Court.

Whatever way the pendulum swings, isn’t it time to start challenging the status quo when it comes to the Petition for Writ of Mandamus?

Edited October 31, 2016 by broncovet

[lotzaspotz]

Yes, I did so, too.  Worked like a charm.  The writ was denied as moot, after the writ dislodged the appeal out of the AMC, which was the whole point of filing it.

 

[MikeHunt]

Thanks for this, it seems EXTREMELY important for the reasons you've laid out ... and common sense!

Could you do a simplified version for dummies??? (Like Mike Hunt)?

[broncovet]

The writ of mandamus is filed at the CAVC.  There are "templates" available.   If you are filing yours Pro Se, make sure you have your ducks in order, first.  

1.  Dont file a Writ where an appeal will suffice.  File a NOD instead.  

2.  Document that you have tried other means.  For example, let's say you filed a NOD, the VA acknowledged the NOD, but never sent your claim to a DRO review, you did not receive an SOC, and your claim was never sent to BVA.  Let's say that was 10 years ago.  (This is what happened to me.)    Now, contact your VARO manager, and explain it in a letter or email what happened, first.  

3.  Next, email "Ask Bob" about the problem.  

4.  If you still dont get a satisfactory result, then you can consider a writ, because an appeal does not apply here, you did that, and VA violated regulations and never completed it.  

     There are other reasons for filing a writ, but they generally are to compel VA to do something they failed to do, such as do the requiste SOC. (An SOC is required before your claim can proceed to the BVA)

 

     You send the Writ, with a check for $50 filing fee to the CAVC.  (NOT THE RO/BVA).  If you can not afford $50, send in a declaration that you can not afford it.  

 

      Here is a template that I used:

 

NAME OF VETERAN,             )

                             )

 Joe Veteran     Petitioner,        )

                             )

          v.                 )    VA File No. C

                             )

Robert McDonald,  in his official capacity as VA Secretary              )

Secretary of Veterans Affairs,)

                             )

Respondent.                     )

VERIFIED PETITION FOR EXTRAORDINARY RELIEF

IN THE NATURE OF A WRIT OF MANDAMUS

MOTION FOR ATTORNEY’S FEES, COSTS AND EXPENSES

UNDER EQUAL ACCESS TO JUSTICE ACT

 

Pursuant to U.S. Vet.App. R. 21, the Petitioner, Joe Veteran , petitions this Court for extraordinary relief in the nature of a writ of mandamus, directed to Respondent, the , Secretary of Veterans Affairs, and its employees and agents in the United States Department of Veterans Affairs; specifically (use your RO hereo Regional Office designated Adjudication Officer, Affairs Regional Office (VARO). This Writ seeks to compel the VARO to fully comply with applicable regulations and to immediately fully comply and implement the Bureau of Veterans Appeals (BVA) decision of . The Veteran contends that the February 2004 (and August, 2005) VARO decisions failed to implement the BVA mandate, and that the March, 2004 Notice of Disagreement disputing this implementation was simply ignored. The Veteran further contends that there is clear evidence supporting the Veterans claims for benefits, and the VARO has unreasonably delayed the Veterans legitimate disability compensation claims for a period exceeding 5 years. These unreasonable delays have had the effect of a denial of the Veterans benefits, as the VARO has shown that it can deny the appellate rights through indefinite delay.

 

THE PARTIES

1.   Petitioner, Joe Veteran  (hereafter the “veteran”), is a Forty Percent (40%) service-connected disabled United States Navy Veteran residing at 1234 Main Street Mayberry, Florida The Petitioner’s phone is . The Petitioner presently is acting Pro Se, but reserves the right to consider legal representation on the matter at a later date.

2.   Respondent, Rob is the Secretary for the United States Department of Veterans Affairs, and is named herein solely in his official capacity.

3.   Respondent, the insert your RO Regional Office designated Adjudication Officer in the Adjudication Section of the  Regional Office and is named herein solely in his official capacity.

JURISDICTION

   This Court has jurisdiction over the subject matter of this action under the All-Writs Act, 28 U.S.C. § 1651(a), the general supervisory authority of the U.S. Court of Veterans Appeals over the VA and Board of Veterans’ Appeals (BVA) conferred by the Veteran’s Judicial Review Act of 1988, Public Law 100-687, 102 Stat. 4105 (11/18/88), 38 U.S.C. § 7251-7292, as amended, and in aid of the Court’s potential jurisdiction over the Petitioner’s future claims, 38 U.S.C. §§ 7252, 7261(a).  Erspamer v. Derwinski, 1 Vet.App. 3 (1990).  This Court has jurisdiction to award attorney fees, costs and expenses under the EAJA (28 U.S.C. § 2412), as do all courts established under Article I of the United States Constitution.  See Essex Electro Engineers, Inc. v. U.S., 757 F. 2d 247, 251 (Fed.Cir. 1985) and U.S. Navy-Marine Corps Ct. of Mil. Rev. v. Cheney, 29 M.J. 98 (CMA 1989).

 

[MikeHunt]

Excellent, again! A little clarification on the 'ask Bob' bullet. AND, most of us don't really understand what happens after a denial- There's a '9' form, then a NOD- ultimately it goes out of the VA- Where the writ applies? I cannot while it' still in VA appeal?

The urgency is many Vets don't have years to wait (not trying to bum anyone out, we do need to speak in context of reality) as they have cancer or are aged. VA appeals will take years- They wait 3, then kick it back to RO for Development, then RO denies again, and so on.

[Palma114]

4 hours ago, MikeHunt said:

Excellent, again! A little clarification on the 'ask Bob' bullet. AND, most of us don't really understand what happens after a denial- There's a '9' form, then a NOD- ultimately it goes out of the VA- Where the writ applies? I cannot while it' still in VA appeal?

The urgency is many Vets don't have years to wait (not trying to bum anyone out, we do need to speak in context of reality) as they have cancer or are aged. VA appeals will take years- They wait 3, then kick it back to RO for Development, then RO denies again, and so on.

 

4 hours ago, MikeHunt said:

Excellent, again! A little clarification on the 'ask Bob' bullet. AND, most of us don't really understand what happens after a denial- There's a '9' form, then a NOD- ultimately it goes out of the VA- Where the writ applies? I cannot while it' still in VA appeal?

The urgency is many Vets don't have years to wait (not trying to bum anyone out, we do need to speak in context of reality) as they have cancer or are aged. VA appeals will take years- They wait 3, then kick it back to RO for Development, then RO denies again, and so on.

MikeHunt, you also made a good point on, how long an appeal could take and how it is kicked back down to the RO for development, and the RO denies it again, and so on. That is true.

I recently had a claim denied at the RO, and received a SOC, so I decided to get an IMO, my VSO said that's okay, let's send the IMO and any new evidence to the BVA, because the RO don't want to grant it. I had to explain to this vso, that the bva was just going to send everything right back down (remand) to the varo. In which that type back and forth adds on years. So I filed a NOD with new evidence (IMO), to let the varo make a decision, up or down. But the key is to put all of your evidence in front of varo, if its denied, but you know that it is strong, most likely bva will rule on your behalf, or the cavc.