Can a reconsideration of a CAVC Clerk's Mandate closing appeal be obtained?

[Lemuel]

What are the chances that the CAVC will grant my Motion for reconsideration of the Clerk's Order closing my Appeal in a Joint Motion for Partial Remand (JMPR)?

Copy and paste from my motion after requesting my attorney be removed.

 

Vet App. No. 23-1587

 

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

 

LEMUEL 

Petitioner, in Pro Se

 

v.

 

Denis R. McDonough

Secretary of Veterans Affairs, Respondent.

 

November 2, 2023

 

MOTION TO RECONSIDER 10/26/2023 MANDATE

 

I, Lemuel C Bray, petition the court to reconsider the 10/26/2023 Mandate.  I have petitioned the court to remove Mr. Steele as my representative because he is unwilling to assist in getting the court’s order, which he says is “boiler plate” and will have no affect on my legacy appeal at the BVA changed so that I have no worry of being limited to the issues decided in the BVA’s erroneous AMA Decision.

I read the order as locking me into the AMA Decision and only able to address the specific issues stated in the remand and causing me to drop all issues raised and evidence presented that was not considered by the BVA in its AMA Decision.

I petition the court to vacate fully the AMA Decision and hold that I had not relinquished my Legacy Appeal including my brief and motions presented per the BASES FOR REMAND in the JMPR of 10/20/2023 and that there be no “partial” in the remand order limiting what I can bring before the BVA.

That the BVA must address the “facts” as stated in my brief and motions as well as the specific references I have made supporting what I claim as facts.  If the BVA finds evidence of record countering my references that overweigh my stated facts, the BVA must so state and provide the evidence of record countering my references.

 

On October 20, 2023, I sent the following email to Mr. Steele:

 

“Re: Rule 33 Memo

From Lem Bray <Email Address Redacted>

To Brandon Steele<Email Address Redacted>

Date Friday, October 20th, 2023 at 7:52 AM

We are good with it as long as no issues are closed. Total remand because the BVA decision did not consider the brief and respond to the motions including the motion to allow an alternative to a hearing as opposed to slamming into the AMA.

LEMUEL C BRAY

2833 Main Street

Torrington, WY 82240

307 316 8568”

 

I have a SC TBI with “off days” in which I do not function mentally well.  The proposed motion was slipped by me and did not get the BVA AMA Decision fully vacated with remand having the effect of closing my Legacy Appeal briefs and motions without consideration of the issues therein as I read the order. As I read the remand the “AMA Decision” that ignored my briefs and motions will stand and be unappealable. Only those issues addressed in the BVA AMA are addressable and the remand will not cover issues raised in my briefs and motions that were not addressed in my BVA Legacy Appeal.

         I am, therefore, submitting a request for reconsideration for the 11/29/2023 BVA AMA decision to be fully vacated and remanded in Legacy Appeal based upon the “BASES FOR REMAND” in JMPR that had the effect of converting my appeal of the erroneous converting my Legacy Appeal to an AMA decision, with the failure to provide the Legacy Appeal hearing and Decision.

         Mr. Steele still argues that the “order is boiler plate” and nothing needs to be done.  A clear reading of the order indicates otherwise.  My argument is that Mr. Steele apparently did not read my brief and motions and include anything in the issues to be remanded in Legacy Appeal that were not in the AMA Decision.  He failed to research and understand the my reasoning.  I recognize that can be difficult given my TBI residuals but he needs to learn to deal with the likes of me and address my issues as I state them or convince me in “law” that they are not addressable.

         My previous attempts to appeal decisions did not fully understand the BVA is the finder of fact and erroneous statements of fact by the BVA cannot be addressed in appeal without a showing of “arbitrary capriciousness” such as the way the BVA slammed me into AMA and ignored my brief and motions.

 

/S/LEMUEL C. BRAY

 

 

 

 

[Lemuel]

The JMPR and the rest of the filings can be seen by going to the CAVC website, clicking on Docket Search, and inserting 23-1587 into the docket box and then clicking search.  Once the docket comes up, click on the 13-1587 to see the filings that are not locked.

The Clerk's Order copy and paste:

Notpublished

UNITEDSTATES COURT OF APPEALS FOR VETERANS CLAIMS

 

No. 23-1587

LEMUEL...,APPELLANT,

V.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS,APPELLEE.

 

OR DER

The parties have filed a joint motion for partial remand (JMPR) as to this appeal to the Board of Veterans' Appeals. As part of their motion the parties have affirmatively waived any and all rights to appeal in this matter. It is

ORDERED that the stay entered on October 11, 2023, is hereby lifted. It is further ORDERED that the motion for partial remand is granted. The matters identified in the

JMPR are remanded pursuant to 38 U.S.C. § 7252(a), for action consistent with the terms of the

joint motion. See Forcier v. Nicholson, 19 Vet. App. 414,425 (2006); Stegall v. West, 11 Vet. App. 268,271 (1998). The appeal as to the remaining issues is dismissed. This order is the mandate of the Court. An application pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA), for award of attorney fees and other expenses shall be submitted for filing with the Clerk not later than 30 days from the date of this order.

 

Edited November 4, 2023 by Lemuel
left out definitive phrases

[Dustoff1970]

Many years ago I successfully represented myself pro se before the U.S. CAVC court on a CUE appeal regarding 4 separate CUE contentions.  And I did have partial success with a single judge ruling decision.

However, in skimming over your above information then IMHO only a veterans attorney such as Ken Carpenter or another can understand fully all the above information and this is beyond the scope of this forum.  If you still have an attorney then discuss your arguments with him in full detail or seek advice from another law firm.  Too late for a national DAV VSO to be of assistance, etc. Good luck.

My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

[Lemuel]

For further information, I was slammed from a Legacy Appeal to AMA during COVID.  Apparently the Judge's Clerk did not want to do the work of responding to my brief's statement of facts and my motions including 20.1000 motions for reconsidering previous BVA Decisions.

This will be a new issue to be decided by the CAVC.  The AMA went into effect in 2017.  All citations that are supposed to make me feel the Order is O.K. are prior to the AMA.  There has never been a challenge to appeal an AMA decision back to a Legacy Appeal that I can find.

 

[Lemuel]

Thanks Dustoff, 

The only thing I might achieve here is getting a reference to a case where the "mandate" was entered and the case was reconsidered.  I have not even looked at the CAVC Rules for the possibility of citing a rule.

I did discuss at length with the "pro bono" attorney that was representing me.  It does not appear that he read my pleadings to the BVA or even fully the BVA Decision.  Only my complaint and NOA regarding the BVA judge slamming me into AMA by creatively reading my motion to allow the Judge to consider my brief and motions without a hearing, but by asking me questions by email on any of my submitted pleadings in Legacy Appeal and retaining the right to the 90 day submission of new evidence from the date of my motion.

The AMA limits evidence to those of record on the date of the Appeal to the BVA.  Thus all of my pleadings and new evidence submitted were ignored.

You are probably right. I may not get any competent advice in this forum.  Possibly an attorney looking for a client may contact me if he thinks he can help.

Problem with being pro se is your pleading rarely get looked at beyond the BVA unless you can keep them really short and simple and still competently present your case.  The Court's clerks read and decide on the VAGC presentations.  The VAGC attorneys know that and sometimes go completely off issue and still get a win which they then cheer themselves around their office.

[Lemuel]

23 minutes ago, Dustoff1970 said:

Many years ago I successfully represented myself pro se before the U.S. CAVC court on a CUE appeal regarding 4 separate CUE contentions.  And I did have partial success with a single judge ruling decision.

However, in skimming over your above information then IMHO only a veterans attorney such as Ken Carpenter or another can understand fully all the above information and this is beyond the scope of this forum.  If you still have an attorney then discuss your arguments with him in full detail or seek advice from another law firm.  Too late for a national DAV VSO to be of assistance, etc. Good luck.

My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

As you point out, you not only need an attorney, but you need a competent one that listens to you and studies your case enough to fairly represent you.  Same goes for VSO and other reps.  Problem is you also need an understanding of your disabilities.  For a 13 year veteran Navy Corpsman like me with independent duty qualification, I am more difficult to snowed by representatives that do not know their way around the Merck Manual and Physicians Desk Reference (PDR).

It is the reason I became an activist for veterans.  I saw veterans in PTSD groups with organic brain symptoms that had not been diagnosed and because of anosognosia, had no clue what exactly was causing their adjustment problems thus hanging them totally on PTSD where the VA wanted them because they could theoretically get over PTSD but, by ignoring organic brain problems, would not have to give them permanent ratings.

 

[broncovet]

I hate to sound like a nay sayer, but I have never heard of a "motion for reconsideration" at the CAVC level.  

If you have a JMR (Joint motion for remand), this suggests both parties agree to the remand. (That is why its called a "joint" motion).   That is, your attorney and the attorney's which represent the VA, are in agreement.  

If you/your attorney agreed to the terms of the JMR, you may not be able to "walk that back", that is, undo the JMR.  

I had a JMR.  My attorney contacted me, and explained "that the attorneys representing VA" had consented to the remand, with the terms outlined in the JMR.  

I had a choice to continue with my claim, hoping the judge would grant "more" than what the attorneys who represent VA offered, or to accept the remand.  Also, on the table was a negotiation of altering the terms/wording of the JMR.  

I signed the JMR, after I had negotiated for, and gotten, the terms of the remand which I had asked for. (throught my attorney).