Writ of Mandamus Granted?

[toddt]

If I am reading this correctly, I believe my petition for a writ of mandamus has been granted.  The last two paragraphs of my case at the Court of Appeals for Veterans Claims:

"Based solely on the petition, the Court can't decide if a writ compelling the RO to decide
the petitioner's claim is warranted. So, it is"

"ORDERED that, within 14 days of this order, the government file a response to the petition
addressing the petitioner's claims."

Now to wait and see what the Regional Office does.  From the time I sent my petition to the Court 9/25/18 until today 10/4/18 that is pretty darn fast.  Thanks to broncovet for the encouragement and to all of Alex's writings on Writs of Mandamus.

[broncovet]

This does not mean your writ is GRANTED, it means that the CAVC judge is requiring a RESPONSE to your complaint (in the writ).  

This is good news..no great news.  If the judge did not feel you had a valid complaint, he can simply dismiss your Writ, right away.  But, the fact that he required a response means he feels you have a valid issue.  But, with all cases, the judge does not "just" hear one side of the arguement, he needs to hear the response, which likely means that your VARO manager, or his designee (if that who is your complaint is with) file with the court a response to your complaint.  

Its probably as close to "granted" as you will get, and will likely serve its purpose.  

I filed a Writ, and, like yours, the judge ordered the VARO manager to respond to my complaints.  Here is (often) an example of how this works:  

Lets say you complained in the writ, that the VARO did not adjuticate an issue you filed 10 years ago.  The VARO manager will likely say, "Gee, your honor, while I understand the VEteran DOES deserve a decision under 38 CFR 3.103, isnt that backlog awful?  As you know there is no time limit to the time we have to comply with 3.103 requiring a written decision.   We are working on it, and expect to have it completed in 60 days."

Then based on the VARO statement, they dismiss (deny) the Writ, but, you should get what you asked for...a decision to a 10 year old claim.  (This is an example only, but not far fetched.)

In other words, you are likely to get a writ denial, but this (ordering the VARO to respond) is almost the equivilant to a win, because it usually means you will get something close to what you asked for in the writ.  (You should have stated in the writ the "remedy" you seek, such as a prompt VARO decision.  The court wont tell the VARO to grant benefits, but they may tell them to issue a decision which either grants benefits or gives a reasons and bases why not.  

 

[broncovet]

"Due Process" basically means that you are given an opportuntity to tell "your side" of the story.  But, your opponet deserves due process also, so he is given the VA a chance to tell their side.  

[toddt]

So, I'm misreading the two sentences:  "Based solely on the petition, the Court can't decide if a writ compelling the RO to decide the petitioner's claim is warranted. So, it is"   

I requested that the Court compel the Regional Office to act upon the remanded portion of the BVA decision and either deny it with a SOC or approve it.  The Court Ordered the RO  to file a response within 14 days.

I was interpreting the two sentences to say;  The Court has taken into account the petitioner's claim and is unable to decide if a writ is "warranted".  And because the Court cannot decide they could not deny or dismiss it and therefor ordered the RO to file a response.   The "So it is" sentence is what is throwing me.   I understand your logic and have read enough writ denials and dismissals but have never come across the "So it is" in any of them.  I'm thinking that the RO will come back with a request for more time.

Once again thank you for your guidance.  

Edited October 4, 2018 by toddt
insert a word

[Buck52]

Call in tonight on the hadit radio podcast show  john Dorle Will be on and he can tell us all just all about how  A Writ has its power and what it can do.

In my opinion  writ will ring the Bell and get the BVA to recognized that this Veteran is serious and some times even if they do not accept a Writ , it rings a Bell and gets things moving.

To call and speak to John or to ask a question to John, Jerrel and John, dial 347 237 4819. @ 7:00pm   6:00pm central  10/04/18

 

I think Alex touch on this a year or two ago.

[broncovet]

Go ahead and call, if you like.  There are "2" hurdles for the Writ.  It used to be that there were also 2 hurdles for a regular claim..your claim had to be "well grounded".  Many a Vet was denied as that step was not met.  

Today, "well grounded" does not apply.  Each claim is assumed to be well grounded.  

In a similar way, the judge has a 2 step consideration.  First, he considers whether or not a response (from the VARO) is necessary.  To meet this criteria, the Veteran needed to convince the judge that there is a POSSIBILITY that his writ be granted.  This judge opined that, he wasnt sure if there was a possiblity it could be granted at least until he hears the response from the VA.  Thus, you were given the benefit of the doubt with the first step, and the judge will review the VA's response and then render a decision on the Writ.  

You see something similar with a claim "reopening with new and material evidence".  Not all evidence in new, and and not all evidence is "material".  The courts have decided that there is a "low threshold" to decide whether evidence was New and material or not.  In other words the new evidence does not have to be "out come determinative" it just needs to have a reasonable chance of substantiating the claim WHEN COMBINED WITH OTHER EVIDENCE.  

I think there is also a "low threshold" with the judge giving you the benefit of the doubt and not dismissing it right away, but instead requiring the VA respond.  If the judge thinks yours is a frivilous writ, with no chance of succeeding, he will just dismiss it and not require the VA to respond.  But you met the criteria, in the opinion of the judge, for step one..that is, he decided to wait until the VARO responds, and move your writ forward.  

[Buck52]

https://www.uscourts.cavc.gov/rule15.php

The Latin word for''Mandamus  means I command

They are 5 types of Writs in court of law  the Mandamus   is mostly used by the Veterans

As Alex as stated  to file a writ  you have Jesus  in your heart and 50 bucks.

Edited October 5, 2018 by Buck52