CAVC Unpublished Order Denying Writ of Mandamus in Hamblin v. Gibson

On June 23, 2014, the Court of Appeals for Veterans Claims (CAVC) issued an unpublished order denying Mr. Hamblin’s petition for extraordinary relief.  The unpublished order can be accessed at Hamblin v. Gibson.

As we previously blogged about at VA Appellate Process, Systemic Delays, and the All Writs Act, decisions from the CAVC denying mandamus petitions under the All Writs Act for delays in promulgating Department of Veterans Affairs (DVA) decisions occur on a daily basis.  As normally occurs, the CAVC cites to Stratford v. Peake, 22 Vet. App. 313, 314 (2008) (per curiam order) (mandamus relief warranted if the ‘delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act,’ rather than merely being the product of a burdened system.”).  What was unusual was other language in the unpublished order: (1) “the RO has adjudicated the petitioner’s claims at issue only after a petition has been filed, which creates a perception that incentivizes the filings of petitions and burdens the Court.”; (2) “the failure of the UBS [Under Secretary for Benefits] and RO staff to respond to claimant inquiries and the rendering of decisions only after a petition has been filed are two overly-common practices that warrant focused leadership”; and (3) “ORDERED that the Clerk of the Court send a copy of this order directly to Acting Secretary Gibson.”

The powers of the CAVC to review petitions for mandamus under the All Writs Act as an Article I court are relatively unique. Provided the CAVC continues to consider the “demands on and resources of the Sectary” and amounts to an “‘arbitrary refusal to act’ rather than being a product of a burdened system” as part of its legal analysis for mandamus, I’m not certain what fact pattern would satisfy the CAVC’s legal analysis. That said, clearly the CAVC is concerned that they are being asked to consider systemic delay issues that are more appropriately addressed by an act of Congress or rule-making by the DVA.  Further, the CAVC is clearly expressing a concern that the DVA is responding to delay issues only to respond after a petition has been filed, rather than proactively resolving delay/responsiveness issues for all claimants.

From my humble perspective, resolving such issues are critical to addressing some of the more fundamental problems concerning agency legitimacy (how veterans perceive the Department of Veterans Affairs) and organizational psychology (how VA employees perceive their workplace environment).

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

7 thoughts on “CAVC Unpublished Order Denying Writ of Mandamus in Hamblin v. Gibson

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  4. Esq. Director: If the the CAVC is reluctant to grant a petition for writ of mandamus and a claim is taking an extraordinary amount of time, which has already been the route of appeal to BVA, CAVC , remanded back to the BVA then remanded back to the VARO, where it now sets for the last two and half years, what recourse does a claimant have?

  5. Fred, foremost, that is a very long time for a claim to be sitting at the RO subject to BVA remand. Personally, I’d have VSO check status so you can understand what additional development needs to take place subject to BVA remand. Courts (and Title 38 vests exclusive jurisdiction in the CAVC/Fed Cir so Fed Cir is unavailable) are hesitant to get involved in processing times . . . not only for veterans claims but in all areas of administrative law. Personally, I with the processing times described I would reach out to your congressman. Rep will at minimum get a response usually in 10 business days as to status of claim. Good luck and wish there was an easier answer. Seth

  6. Esq. Director: If the CAVC is reluctant to get involved in areas of administrative law, but has the jurisdiction to overturn a BVA decision, then what is their purpose? To me they are just contributing to the backlog. I realize their stand is not to put pressure on an overburden agency, but it appears to be just another cog in the wheel and another waist of taxpayers money. Why can’t a decision (denial) from BVA go directly to the Federal Circuit Court? I realize the CAVC doesn’t get into the business of gathering additional evidence, and therefore remands the case back to the VA, but if the BVA decision (denial) was clearly erroneous, then why doesn’t the CAVC overturn more of the BVA decisions?

  7. Fred, wish I had an answer but questions you raise are likely to be issues that Congress needs to address in next session when visiting issues of VA appeal process reform and changes. The issue you posit is this, the Article I courts are tribunals of limited jurisdiction created by Congress. Having worked in Article I military courts before, I’m confident that the judges struggle with the scope of their jurisdiction/balancing rights for veterans daily (most of those folks wore a uniform also). These are really ephemeral concerns for you . . . at the micro level you need your issue addressed in expeditious a fashion as possible. Happy to triage issue with you, and provide my recommendation on how to proceed. Same offer I extend to anyone. Feel free to call me 732-382-6070. Seth

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