Veteranclaims’s Blog

August 9, 2015

Single Judge Application; Groves v. McDonald, 27 Vet.App. 168, 176 (2014) (per curiam order); VA Can’t Be Bystander; Expeditious Treatment; VA ADJUDICATIONS PROCEDURES MANUAL REWRITE (M21-1MR), pt. II, ch. 5, § 3.a-b; Respond to Letters

Excerpt from Decision below:

“Not only did the RO not accord Mr. Bailes’s case expeditious treatment, but it failed to respond to any of his counsel’s nine letters inquiring about the case’s status, despite VA’s policy to timely respond to such inquiries. See VA ADJUDICATIONS PROCEDURES MANUAL REWRITE (M21-1MR), pt. II, ch. 5, § 3.a-b (requiring a locally generated “letter of acknowledgment” and a “complete reply . . . as soon as possible” to attorney inquiries).
The Court finds particularly inexplicable the RO’s decision to respond to June and September 2014 congressional inquiries while continuing to ignore repeated requests as to the status of his case from the veteran. The fact that the RO responded, however perfunctorily, to the congressional inquiries but not to the veteran’s inquiries compounds the egregiousness of VA’s inaction. See Groves v. McDonald, 27 Vet.App. 168, 176 (2014) (per curiam order) (“Charged with responsibilities to both this Court and to veterans, VA is far more than a bystander and cannot simply do nothing in the expectation that this Court eventually will be asked to act on mandamus review.”).”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1093
DAVID H. BAILES, SR., PETITIONER,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before BARTLEY, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On March 19, 2015, veteran David H. Bailes, Sr., filed through counsel a
petition for
extraordinary relief in the nature of a writ of mandamus. The petition
alleged the following facts.
On August 1, 2012, the Board of Veterans’ Appeals (Board) remanded the
issue of entitlement to an
extraschedular evaluation for total disability based on individual
unemployability (TDIU) to the
Cleveland regional office (RO) for referral to the Director of the
Compensation Service (Director).
Petition, Exhibit (Ex.) A. Afterpresent counselnotified VA that he was
representing Mr. Bailes (id.,
Ex. B), he sent nine letters between December 2012 and February 2015
asking VA about the status
of the August 2012 remand (id., Ex. C). The veteran asserted that he has
not received any response
to these letters or notification regarding the status of the remand.
Petition at 2.
Mr. Bailes asked the Court to issue a writ of mandamus ordering the
Secretary to “promptly
process his 31-month old remand from the Board” and “reimburse [him] for
his attorney’s time and
expense in pursuing this matter,” arguing that he meets the criteria for
this relief. Id. at 1-2. In light
of the allegations in Mr. Bailes’s petition, the Court deferred ruling and
ordered the Secretary to file
an answer to the petition. See U.S. VET. APP. R. 21(d).
The Secretary responded on April 15, 2015. He acknowledges that the RO had
received
October 2014 and February2015 inquiry letters from Mr. Bailes’s counsel
but conceded that VA did
not respond to them; he does not mention the seven other letters sent to
the RO. Response at 2. The
Secretary notes that the Cleveland RO responded to June and September 2014
congressional
inquiries on the veteran’s behalf; in both instances, VA stated that the
case was “currently pending”
and advised to check back in 120 days. Id. & Attachment 1. The
Secretarynext avers that, on March
25, 2015, the RO referred the issue of entitlement to extraschedular TDIU
to the Director. Response
at 2. Because this action provides the relief Mr. Bailes sought, the
Secretary urges the Court to

dismiss the petition as moot. Id. at 2-3. Last, the Secretary asserts
that the veteran “did not provide
any argument or explanation as to why [his attorney] is entitled to
reimbursement.” Id. at 1 n.1.
This Court has authority to issue extraordinary writs in aid of its
jurisdiction pursuant to the
All Writs Act, 28 U.S.C. § 1651(a). See Kelley v. Shinseki, 26 Vet.App.
183, 185 (2013) (per curiam
order). However, the Court also adheres to the case-or-controversy
jurisdictional requirements
imposed by Article III of the U.S. Constitution. Cardona v. Shinseki, 26
Vet.App. 472, 474 (2014);
Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990). When the relief requested
in a petition for
extraordinary relief has been obtained, the appropriate course of action
is for the Court to dismiss
the petition as moot. Thomas v. Brown, 9 Vet.App. 269, 270-71 (1996) (per
curiam order); Bond
v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam) (“When there is no
case or controversy, or
when a once live case or controversy becomes moot, the Court lacks
jurisdiction.”). In the present
case, because Mr. Bailes has been afforded the relief requested in his
petition—namely, the RO’s
referral of his claim to the Director for extraschedular TDIU
consideration in compliance with the
August 2012 Board remand—the Court will dismiss the petition as moot.
Although the petition for a writ of mandamus must be dismissed as moot,
the Court is deeply
troubled by VA’s lack of attention to the timely adjudication of claims
for benefits, particularly in
view of the fact that Mr. Bailes’s case had been remanded by the Board in
August 2012 and should
have been given expeditious treatment by the RO. See 38 U.S.C. § 5109B (
requiring that matters
remanded from the Board be given expeditious treatment); see also Vargas-
Gonzalez v. Principi,
15 Vet.App. 222, 225-30 (2001) (holding that remand by the Board of any
element of a claim
requires expeditious treatment of all elements of that claim that are
subsequently adjudicated).
Not only did the RO not accord Mr. Bailes’s case expeditious treatment,
but it failed to respond to any of his counsel’s nine letters inquiring about the case’s status, despite VA’s policy to timely respond to such inquiries. See VA ADJUDICATIONS PROCEDURES MANUAL REWRITE (M21-1MR), pt. II, ch. 5, § 3.a-b (requiring a locally generated “letter
of acknowledgment” and a “complete reply . . . as soon as possible” to attorney inquiries).
The Court finds particularly inexplicable the RO’s decision to respond to
June and September 2014 congressional inquiries while continuing to ignore repeated requests as to the status of his case from the veteran. The fact that the RO responded, however perfunctorily, to the congressional
inquiries but not to the veteran’s inquiries compounds the egregiousness
of VA’s inaction. See Groves v. McDonald, 27 Vet.App. 168, 176 (2014) (per curiam order) (“Charged with responsibilities to both this Court and to veterans, VA is far more than a bystander and cannot simply do nothing in the expectation that this Court eventually will be asked to act on mandamus review.”).
Moreover, the March 25, 2015, date of the RO’s referral to the Director,
one week after Mr.
Bailes filed the present petition, indicates that the RO had not
undertaken to complywith the August
2012 Board decision until the veteran sought recourse in this Court. It is
not even clear why it took
the RO a week to respond after it became aware of the petition, inasmuch
as the Court observes that
paragraphs 3, 4, 5, 6, 7, and 9 of the RO’s referral memorandum were
copied verbatim from pages
21 (paragraphs 2, 3, and 6) and 22 (paragraphs 1, 2, 3, 4, and 6) of the
August 2012 Board remand.
2

Compare Response, Attachment 2, with Petition, Ex. A. Such delay for a
simple ministerial act is
inexcusable.
Although the Court is reluctant to advise the Secretary on best practices
or use of agency
resources, see Bullock v. Brown, 7 Vet.App. 69, 69 (1994) (per curiam
order) (noting that VA
inaction must be unreasonable before a court will inject itself into an
administrative agency’s
adjudicative process), it seems apparent that the excessive delay—not to
mention the need for
repeated inquiries from the veteran, culminating in this petition—could
have been avoided if a
screening or triage system were in place. The Board remand here, which
simply ordered referral to
the Director and contained all relevant information necessary for any
referral memorandum, would
seem to be a perfect candidate for such action.
Now that the Secretary is aware of the near-three-year delay in RO’s
referral of this simple
matter to the Director, the Court trusts that VA will in future adjudicate
these matters in an
expeditious manner and that further petitions for extraordinaryrelief on
the veteran’s behalf will not
be necessary. Cf. Previous HitGrovesNext Document, 27 Vet.App. at 169 (holding the Secretary in civil contempt because his “failure to provide a minimum amount of scrutiny to any one of multiple letters” from the veteran
following a Court remand “showed gross negligence and lack of reasonable diligence”).
Finally, the Court construes Mr. Bailes’s request that the Court order the
Secretary to
reimburse his attorney for time and expenses (Petition at 1) as a motion
for attorney’s fees and
expenses under the Equal Access to Justice Act (EAJA). Unfortunately, EAJA fees and expenses may not be awarded here. To qualify for an EAJA award, a claimant must be a “prevailing party.”
See 28 U.S.C. § 2412(d)(1)(A); Sumner v. Principi, 15 Vet.App. 256, 264 (
2001) (en banc). In Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources,
532 U.S. 598, 601, 609-10 (2001), the U.S. Supreme Court rejected the ”
catalyst theory” of
prevailing-party status, which “posits that a plaintiff is a ‘prevailing
party’ if [the plaintiff] achieves
the desired result because the lawsuit brought about a voluntary change in
the defendant’s conduct.”
The Supreme Court reasoned that “[a] defendant’s voluntary change in
conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit, lacks
the necessary judicial
imprimatur on the [judicially sanctioned change in the legal relationship
of the parties]” to confer
prevailing-party status on a plaintiff. Id. at 605. Because the Court is
dismissing this petition as
moot followingthe Secretary’s provision of the reliefsought, Buckhannon
precludes an EAJA award
in these circumstances. See Akers v. Nicholson, 409 F.3d 1356, 1359 (Fed.
Cir. 2005); Vaughn v.
Principi, 336 F.3d 1351, 1357 (Fed. Cir. 2003); Thayer v. Principi, 15 Vet.
App. 204, 211 (2001).
Upon consideration of the foregoing, it is
ORDERED that Mr. Bailes’s petition for extraordinary relief in the nature
of a writ of
mandamus is DISMISSED as moot. It is further
3

ORDERED that Mr. Bailes’s construed motion for attorney’s fees and
expenses pursuant to
EAJA is DENIED.
DATED: May 4, 2015
BY THE COURT:
MARGARET BARTLEY
Judge
Copies to:
Keith D. Snyder, Esq.
VA General Counsel (027)
4

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: