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UpToHere
I accept asknod’s points:
1. Only the Secretary can award ER.
2. There’s no way to appeal a *denied* ER petition.
3. There’s no way to file an NOD for a denied ER petition.
4. There’s no way to file a Writ at the Court.
5. ER is a one-shot deal that’s not appealable.
Nevertheless, I have a question:
When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial?
To put this question another way:
When VA cites the record to support its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA *misstated* the record, can a petitioner invoke the Administrative Procedure Act, to prod VA to revisit its denial?
“Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”
https://www.nytimes.com/2019/11/21/opinion/sunday/Supreme-Court-DACA-Trump-taxes.html
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