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.

[Buck52]

The Writ can be a useful tool in the aresenal of a veterans benefits lawyer in order to make VA take action on a claim that has been stalled for years.  For example, one of the earliest cases concerning a Writ in the history of the veterans' court involved a veteran, and subsequently his widow, who had been seeking service connection for about 20 years before finally pursuing court intervention to force VA to take action.  The Court in that case denied the writ based on the representation of VA's counsel that a decision was imminent. 

This raises an important point.  That is, for the Court to have jurisdiction there must actually be a case in controversy.  So, if VA makes a decision on a VA appeal that was the subject of the Writ, then the Writ would be denied as moot.  But, in most cases, the denial of the Writ becomes inconsequential because it is actually the filing of the Writ itself that forces VA to look at a veteran's file and take action.  In other words, a veteran's file may have slipped through the cracks, being buried somewhere in the VA regional office.  It's off their radar screen. 

However, when VA realizes it must defend against a Writ, the VA's response is often to take the action that the Writ is seeking and then notify that Court that there is no controversy and so the Writ would be moot.  I will give a real life example.  I represented a disabled veteran on his VA appeal in an increased rating claim for PTSD.  His VA appeal had been pending for about 6 years.  He filed his Notice of Disagreement and then hired our veterans disability law firm to represent him.  We requested a decision review officer (DRO).  This case involved a VA denial from the Seattle regional office.  We waited for 2 years and there was still no decision.  Our office kept writing to the VA but we received no response.  Finally, it had been almost 3 years and the DRO had still not made a decision. 

So, we started sending letters to the RO every 30 days.  We did this for about 4 months.  The VA never responded.  Our letters clearly notified the VA that we would seek relief with the U.S. Court of Appeals for Veterans Claims if no response was received.  Despite our threats, the VA still did not respond.  We filed the Writ of Mandamus.  The Court issued an order directing the VA's counsel to respond to the allegations in our Writ.  Within approximately 2 weeks I received a telephone call from the VA lawyer indicating that the Seattle regional office had made a decision on the claim.  The VA attorney asked if I would dismiss the Writ as being moot since the relief we sought had been granted.  Our client had no probelms dismissing the writ because the case had been resolved and he received a sizeable back pay check shortly thereafter.

This illustrates the strategic mindset behind the filing of a Writ.  Often times it is not expected that the Court will actually grant the Writ.  But the actual filing of the Writ, regardless of its ultimate success, often serves as a catalyst to get a veteran's case noticed and to cause VA to take action.  The technique of using a Writ can be used when a claim has been stalled for many years or there is otherwise a sense that VA has lost track of the claim.

To file a Writ, certain requirements should be followed:

A veteran must show clear and indisputable right to the Writ.

He must show that he lacks alternative means to obtain relief.

He must show that under the circumstances, the Writ would be warranted.

He must show that the delay was so extraordinary that it amounts to a refusal to act on the part of the VA Secretary.

 

Source:'' Veterans Disability Info''

[toddt]

I have found my mistake.   Because the two sentences were separated between two pages I was reading them as three sentences.   When you see that there is no period after "So it is" and connect it to the rest of the sentence which was on the next page and started with all caps "ORDERED" then it makes a lot more sense.

 "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."

Well, at least I should know something before the end of the month.  Thanks for all the input and apologizes for my almost 80 year old brain not working too well.

[broncovet]

I hope my brain can pick up such a subtlty at age 80!!!

[GeekySquid]

15 hours ago, Buck52 said:

He must show that the delay was so extraordinary that it amounts to a refusal to act on the part of the VA Secretary.

@buck52

Here is a question for you. In terms of the VACA what length of time constitutes "extraordinary delay"?

To a veteran new to this your cited example seems to have reached that threshold at the second letter you sent to the RO.

I find this relevant to me in particular as I am in Seattle but I know it applies everywhere.

I am not at a writ stage, just an very impatient veteran who refuses to "hurry up and wait" ever again.

[Buck52]

GeekySquid

Good Question

Unfortunately I can;t give you an answer to your questions, my post above is a quote from ''Veterans disability Information'' web site

I quoted that in hopes that it would help some Veterans

I have trouble understanding that too.

Alex broncovet, and Ms Berta know more about the writs than anyone here.

You might ask Alex  this question  aka (Asknod) I think he is familiar with the Seattle R.O.

Edited October 6, 2018 by Buck52

[Buck52]

Here is a quote from a veteran over at VBN Remember this is just his  ''Personal Opinion'' ..it may or may not relate your case.

but

it may help you.

  its quite a long read but maybe some of the information maybe beneficial to you or others.

Check out quote from the last paragraph!

I've been personally involved twice and without representation.  First of all, it sounds like your attorney did the right thing by providing the VARO advance notice of the potential writ if the alleged obstruction was not resolved (as a disclaimer, I'm a lay person, so I have no qualification to suggest any attorney did anything right or wrong, but I'm just sharing my personal opinions here.)

Anyway, the Court is said to frown on any writ where a good faith effort wasn't made to avoid filing a writ, which would include a notice to the VA of intent to do so.  After all, you are asking the court to intervene and alleging you have no other choice, having exhausted all other remedies through administrative means and therefore you have no alternative but to seek a resolution through the Court.  So, I'm glad you indicate your attorney has already provided the VA fair notice or so it seems.

In the first instance of my two experiences, the VARO resolved the problem to my complete satisfaction within just a few days of personally delivering a formal notice of my intent to file a petition for a writ through the court (CAVC) and I think I also sent a copy to the VA Counsel in Wash, D.C. but don't really remember now, since I was involved in yet another instance.  I suppose from what I learned, is that the CAVC grew weary of receiving petitions for writs which could have and should have been resolved without the necessity for a petition to the Court.  Therefore, in my opinion, it is not a bad idea to keep the VA counsel in the loop by serving copies to them in Washington D.C. of your intent to file for a writ   Regardless, if you do file a petition to the Court, you will be required to submit copies to the Respondent (VA Director) through the VA Counsel.

But, bear in mind, few if any petitions for a writ are ever granted by the Court, because the Court views a final BVA Decision as the final administrative decision, after which, jurisdiction can then move on to the Court if a BVA Decision is appealed and only then, will the Veteran be deemed to have exhausted all administrative recourse.

Nevertheless, many of the issues are resolved once a notice of intent to file for a writ has been delivered (assuming the potential petition has merit) but it sounds like your attorney hasn't had success with that option.

However, even though the Court may decline most if not all petitions for a writ, the Court nevertheless still receives many time consuming and resource hogging petitions for writs which the Court still has to deal with, some of which are surely without merit too.

The good news however, as I came to understand, is that the Court still expects the VA not to contribute to that burden by ignoring Petitions that should have been reasonably resolved administratively.  Consequently it seems, many Petitions for a writ are withdrawn, once the General Counsel for the VA gets involved and brings about an internal resolution which may render a petition moot and thus solve the whole problem.

I also did petition the Court subsequently (and actually a 3rd time for reconsideration which was considered by a panel of 3 judges) in protest of a decision to remand my appeal, but I was unsuccesful in that regard, because as I mentioned above, I had not yet received a final admisistrative decision by the BVA.

Regarding the time involved, everything to do with the Court, always seemed to move on without delay and was certainly much faster than anything I had experienced with the VA.

Over time, I hold no ill will towards the VA or anyone else I encountered during my 8 year battle for the benefits I was entitled to, but I suppose that's easer to say after having prevailed in the end.  I've also come to realize there really are two sides involved with good people on both sides, all acting in good faith from their own respective positions.


p.s. I forgot to mention the most import thing in reply to your post.  Unfortunately, I think you have an uphill battle, because your petition will be just one more of many others seeking intervention by the Court for VA delays.   From my memory of what I learned, the Court doesn't view most  alleged delays as being anything other than whatever the customary delays might be for any veteran and unless your situation is truly an "Extraordinary" delay or some other "extraordinary" circumstance, don't get your hopes up for any "extraordinary" resolution.