Veteranclaims’s Blog

November 4, 2014

Single Judge Application; Mandamus Filing; U.S. VET. APP. R. 21(a); Costanza v. West, 12 Vet.App. 133, 134 (1999)

Excerpt from decision below:

“The Court will dismiss the petition without prejudice to refiling because it fails to comply with Rule 21 of the Court’s Rules of Practice and Procedure. Pursuant to Rule 21(a), a petition for an extraordinary writ must, inter alia, (1) state the precise relief sought; (2) state the facts necessary to understand the issues presented by the petition; (3) state the reasons why the Court should grant the petition, including why the petitioner has a clear and indisputable right to the writ and why there are inadequate alternative means to obtain the relief sought; and (4) include an appendix containing copies of any order or decision or any other documents necessary to understand and support the petition. U.S. VET. APP. R. 21(a).

An “assertion based upon ‘information and belief’ does not establish the requisite factual basis upon which this Court will grant mandamus nor does it demonstrate a clear and indisputable right to extraordinary relief.” Costanza v. West, 12 Vet.App. 133, 134 (1999).”

======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-3164
EARNEST ROSS, JR., PETITIONER,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before PIETSCH, Judge.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On September 23, 2014, Mr. Ross filed through counsel a petition for extraordinary relief in the nature of a writ of mandamus. He alleges that VA has not responded to a Notice of Disagreement (NOD) that he filed in December 2012, in response to an October 2012 VA decision assigning a disability rating of 30% for post-traumatic stress disorder. Petition (Pet.) at 3-4. He therefore seeks an order from the Court compelling VA to issue a Statement of the Case in response to his NOD. Pet. at 1, 8. He appears to indicate that VA took some action following his NOD by
requesting from him additional information, and that he responded to this request. Pet. at 3-4.
The Court will dismiss the petition without prejudice to refiling because it fails to comply with Rule 21 of the Court’s Rules of Practice and Procedure. Pursuant to Rule 21(a), a petition for an extraordinary writ must, inter alia, (1) state the precise relief sought; (2) state the facts necessary to understand the issues presented by the petition; (3) state the reasons why the Court should grant the petition, including why the petitioner has a clear and indisputable right to the writ and why there are inadequate alternative means to obtain the relief sought; and (4) include an appendix containing copies of any order or decision or any other documents necessary to understand and support the petition.
U.S. VET. APP. R. 21(a).

An “assertion based upon ‘information and belief’ does not establish the requisite factual basis upon which this Court will grant mandamus nor does it demonstrate a clear and indisputable right to extraordinary relief.” Costanza v. West, 12 Vet.App. 133, 134 (1999).
Here, although the petition is premised on allegations that VA issued a rating decision with respect to the petitioner’s disability claim in October 2012 and that the petitioner filed an NOD in December 2012, the petitioner has not provided the Court with evidence of those facts, such as a copy of those documents or a sworn affidavit with relevant details. Nor has the petitioner provided the Court with copies of VA’s request for additional information or the petitioner’s response. The Court further notes that the dates provided by the petitioner for VA’s additional request for information and the petitioner’s response appear to contain typographical errors because the dates provided pre-date the alleged date of the NOD. Thus, the petitioner has failed to “provide the Court with copies of any order or decision or any other documents necessary to understand and support the
petition.” U.S. VET. APP. R. 21(a).
Upon consideration of the foregoing, it is
ORDERED that the petition for extraordinary relief is DISMISSED without prejudice to
refiling.
DATED: October 31, 2014 BY THE COURT:
CORAL WONG PIETSCH
Judge
Copies to:
Paul M. Goodson, Esq.
VA General Counsel (027)
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