Writ of Mandamus
The VA takes forever to act.  Nothing new there.

(The man on the bench in the image above?  He was 25 years old when the BVA Remanded his claim…they still haven’t taken action).

But there really isn’t anyone who can help with this.  In fact, when it comes to third-party accountability, you’d probably be better off studying alchemy.

Congress – as I’ve often said here – is like nipples on a man. Sure, we’d look weird without them, but they are virtually useless in recent years.

What about the Courts, though? What role do they play in holding the VA Accountable?

Frankly, the Court does a better job than anyone of holding at least the BVA accountable – and while I wish they did MORE – I understand that the CAVC is a young court in the grand scheme of things, and that if you are looking for massive overnight change in the law, you are unlikely to find it in the Courts.

In reality, the ONLY relief is to be more proactive in our VA Claims and Appeals, and file claims/appeals that the VA wants to adjudicate.   Follow my 8 Steps to Improve Your VA Claim and I will teach you how to become more proactive – and more powerful.

However, if you are into taking a “shot in the dark”, consider the possibility of filing a Writ of Mandamus with the Court of Appeals for Veterans Claims.

Trivia Question: Do you know when a Veteran filed the First Petition for Writ of Mandamus?  Answer: 1792.  A United States Appeals Court – signaling a trend that would continue  to the present day – denied this Revolutionary War Veteran’s Writ challenging the Government’s slow handling of Veteran Pensions.

Keep in mind that like taking an actual “shot in the dark” with an actual rifle, filing a Writ of Mandamus is not something to be taken lightly.

I doubt that the CAVC will sanction the average Veteran filing a Writ, but it is a step you want to be very, very careful before taking.

In fact, in late 2014, the CAVC did sanction a Veteran for, as I recall, frivolous filings at the Court.  More on that later.

What is a Writ of Mandamus?

When the Executive Branch fails to take action it is required to do, most normal civilians or corporations can ask the Courts to Order the Executive Branch to take an action required by law.

They do this by filing what is called a Petition for a Writ of Mandamus.

The Writ is a relic of the legal process that existed when judges wore wigs and armies wore chain mail and rode horses. Orders of what were then known as a “court” were called “Writs”.

Writs had distinct names, often in Latin.

The word “Mandamus” comes from the Latin and has come to mean, “We Order”.

So, the Writ of Mandamus is an Order from a Court directing an Executive Branch Official to take a certain required action.

The Court of Appeals for Veterans Claims has the authority to issue a Writ of Mandamus pursuant to a statute called the All Writs Act.

To seek that relief, you have to file what is called the “Petition For a Writ of Mandamus”.

You can start your research on preparing a petition for a Writ of Mandamus in Rule #21 of the Local Rules of the Court of Appeals for Veterans Claims.

What must a Veteran show to get a Writ of Mandamus Issued?

Honestly, nobody really knows.

The Court has  issued the Writ less than a handful of times in its young history. However, here are the legal elements of a Writ of Mandamus.

A Word of Caution: telling you the “Elements” to a legal claim is like telling you the list of ingredients for a good lemon merengue pie – I am telling you what goes in to the pie, but not how to put the ingredients together to make the pie.

I’d love to tell you the “how” of this type of filing, but because the Court has only issued the Writ a handful of times in its history, I don’t know that anyone can tell you how to succeed with a Petition for a Writ of Mandamus.

(1) The petitioner must lack adequate alternative means to attain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process,

(2) The petitioner must demonstrate a clear and indisputable right to the writ, and

(3) The Court must be convinced, given the circumstances, that the issuance of the writ is warranted.

If you are alleging “delay” is the basis for your Petition for a Writ of Mandamus, then you have an “extra” element:

(4) The petitioner must demonstrate that the alleged delay is so extraordinary, given the demands on and the resources of the Secretary of the VA, that it is equivalent to an arbitrary refusal to act.

What does all that mean – in English:

1) You have to have tried every which way but Sunday to get the desired relief, but the VA is not responding at all.

2) There has to be a legal duty for the VA to act – spelled out exactly the way you are asking for it. (In other words, you won’t get a Writ issued ordering the VA to respond to your latest letter).

3) The Judge considering your Petition has to be convinced you need a Writ.  I wish I could tell you what that meant, but there are so few writs issued by the Veterans Court that nobody can really say how you convince a Judge you need the Writ.

4) If you are alleging “VA delay” as the basis of your Petition for a Writ of Mandamus, you have a hard row to hoe.   The Court is likely to find that the VA is so overwhelmed with demands from Veterans that even another $152.7 BILLION DOLLARS from the Taxpayers won’t help it meet those demands.

That does not mean, however, that you won’t get the relief you seek. Sometimes, to show that it is not “refusing to act”, the VA has to provide the document that you are seeking to have the Court Order they produce.

Here are some things to keep in mind when it comes to a Writ of Mandamus.

Point #1: You can tell that I’m not real “keen” on the Writ of Mandamus. That’s partially true. It’s another arrow in the quiver, and I have and will use it as appropriate. Just be careful before you string this arrow, as it is one that can come back to strike you.

Point #2: The Writ of Mandamus is a drastic remedy “to be invoked only in extraordinary situations.” Think of the millions of Veterans that the VA has screwed over in the past 60 years. Now, think of the small handful that have succeeded in getting a Writ of Mandamus issued. Unless your situation is TRULY one in a million, it may never get granted. I’m not saying this is how it SHOULD be…I’m just saying this is how it IS.

Point #3: The All Writs Act only allows a Court to issue a Writ of Mandamus in furtherance of the Court’s jurisdiction. This means a lot more than I can cover in a single post, but here’s one thing that can be said: If the CAVC doesn’t have the authority to do the thing you are asking them to order the VA to do, then they are NOT going to issue a Writ of Mandamus to the VA.

Point #4: Even when the Writ of Mandamus is granted, the result is that the VA is ordered to take the next action in the appeal process – never ordered to do something substantive. The CAVC will order the VA to issue a SOC, for example, but will never issue a Writ of Mandamus ordering Service-Connection. They just can’t insert themselves into the process like that – if the issue before the Court is a Writ, it will decide that issue, and none other.

Point #5: The Court doesn’t seem to look favorably on Writs, although maybe the right facts haven’t percolated up the appeals process, yet. Please thoroughly research the law before filing a Petition for a Writ of Mandamus – the last thing you want is a court decision dismissing your Writ because you failed to follow the rules.  Instead of getting action from the VA, you will empower them to do a lot more of nothing.

Point #6: The easiest way to lose a Petition for a Writ  of Mandamus is to convince the Court that you are using the Petition as a substitute for the actual appeal process. The key to a Writ – whatever it is – probably involves getting the next action in the VA Claims Process from the VA.

Point #7: The Court will not intervene by issuing a Writ  of Mandamus unless you prove all of the above elements – even though severe hardship may result from continued VA delay

Point #8: A Writ of Mandamus will not ordinarily be granted when an alternative remedy is available, and it is never granted when the official to whom it would be directed has the legal discretion either to perform the act demanded or to abstain from doing so.

Point #9: Even when a Veteran can show all the elements that should entitle them to issuance of a Writ, all the VA has to do is respond and it can moot the appeal.

Summary.

The Writ Process at the CAVC is, in my eye, more evidence of the hallmark of the VA system – there is no accountability.

At the Attig Law Firm, the lack of accountability inside the VA is not something we spend a lot of time on.

Why?

It’s a distraction from the real problem – getting Veterans OUT of the VA Hamster Wheel, winning their claims and appeals, and getting them a chance to move on.  If I can paraphrase a line from the movie “Wargames”:

“The Only Way to Win the VA Claims and Appeal game is to get out of it as soon as possible.” 

My law firm is not trying to change the VA Claims Process.   Every generation of Americans invents a new Hamster Wheel for its Vets to run through – we’re simply are not in the business of inventing “Better Red-Tape.”

But my law firm – and the Veterans Law Blog – ARE in the business of Changing the Way Veterans Experience the VA Claims Process …. by giving you – the Veteran – More Information, and More Power, in More Ways.

We don’t need accountability to fulfill that Vision – we simply need to take back the Power we already have.

4 Comments

  1. Alan Crawford

    I’ve enjoyed reading your online advice over the years, or better said since you are a lawyer; I mean your online educational topics -lol

    Anyway, I contacted your office recently to explore obtaining your help to prepare a CAVC Writ Petition, but your telephone representative (while very nice) suggested it would take you too long to get my VA records to be of help.

    Nevertheless, as Veteran clamoring to be the one in a million who has any luck at all with a Writ Petition, I prepared my own (pro se) which I filed with the Court today (postmarked today).

    The toughest part for me as a layperson, was trying to compress everything I wanted to write into just 20 pages of double spaced lines -lol

    After a few drafts, I just tried to keep my petition focused on the most important issues to warrant Court intervention and referenced those facts in a 350+ page indexed appendix.

    My claim of 7+ years ago, is for a simple rating increase involving service-connection established 40 years ago, but like the majority of BVA Appeals, mine was remanded back to the AOJ last month.

    My assertions involve the failure of the BVA to perform their required duties and BVA obstruction of my due process entitlement, in a continuing pattern violations caused by the AOJ.

    Even though I am and have been pro se with no formal education beyond high school, I did have my Petition for BVA Docket Advancement Granted due to extraordinary AOJ error caused delays.

    So, while I go forward now, turning to the CAVC for relief against even more difficult odds to overcome, all I can do is do the right thing, which is not give up just because the VA wants me too.

    If by some obscure chance, I do find myself lucky enough to be counted among the handful of Veterans who ever do succeed with CAVC petitions, or not, let me thnk you in advance for the very infomative tips you provide online to help Veterans with their VA Claims/Appeals.

    Reply
    • Chris Attig

      Alan,

      Thanks for the feedback!

      Believe me, the toughest part for attorneys is compressing everything we want to write into 20 pages. I’ve long believed that attorneys should charge by the word.

      If you’ll send me the Cause # at the CAVC, I’d love to follow the proceedings by watching the docket. My email is support@veteranslawblog.org

      Chris

      Reply
  2. Stephen Moore

    I have asked for a DRO HEARING and mailed about five or six requests ( certified mail return receipt requested ) since 2010. The VA has not responded to any and I’m still waiting for the DRO review. They acknowledged my initial NOD with my DRO request. Couldn’t a WRIT be utilized in this instance

    Reply
    • Chris Attig

      Given the fact that the CAVC is looking for an attorney to sanction – and because we don’t give legal advice on the blog – I’m not going to say whether or not the Writ process could be utilized in your specific case. (Request a consultation and we can take a closer look at the situation). I’m a little curious why they haven’t granted a DRO Conference in 3+ years – that’s odd, even for the VA. Which RO are you at?

      Having said that, I probably wouldn’t use a Writ to get a DRO conference. Why do I say that? Because let’s say, for the sake of example, that you win a Writ and the CAVC orders the VA to hold a DRO conference. (They wouldn’t do that, in all likelihood).

      There is no law that says that the VA has to do anything after a DRO Conference – so they could hold the DRO conference and sit on their hands for another 4 years.

      Now, the failure of the VA to issue a Statement of the Case (SOC) after timely requesting a Notice of Disagreement? That’s one of the few areas where I have seen the CAVC issue a Writ. Make sure you can prove ALL of the elements in the Writ Petition, though.

      Lack of action alone is not enough.

      Chris

      Reply

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