Hi, all. Has anyone here ever filed a writ of mandamus request, had the CAVC judge issue an order to the VA to respond within 30 days (in this case the order was dated 5/1/08), only to have the deadline pass with no response?

I was just wondering what happens next. To date, we've heard nothing from the VA, there's no new developments at the CAVC, and it looks like the VA has not requested an extension of the deadline. I know we are not supposed to count the date the order was issued against the 30 days, and we had the Memorial Day holiday in the mix, too. I guess we should wait until the end of the week before getting concerned?

Thanks!

I would wait and just keep checking the Docket list to see if the VA responded to the CAVC.

Congrats-the court usually denies Mandamus right off the bat-saying the claimant has not exhausted all avenues of administrative appeals etc.

Every single thing any VA department does goes slowly-

Two Weeks ago the General COunsel's office called me for my faxed permission to send something to my POA-

it was a hurry up deal-the US lawyer acted as though they wanted to put my complaint in the mail to the POA right away-

I found out yesterday that the POA (this is a complaint under 38,USC 14.633) still might not have received the complaint yet.

Then again another dept of the OGC has something else from me-a FOIA- the last FOIA took over 2 years to process and then I appealed and then they denied the appeal-2 years later- the recent FOIA I sent might well have held up the complaint against the POA-all of these situations are related in some way---
I found out some alarming news as to my husband's death-and the FTCA matter-
I am calling the VA to task on it-
If we as claimants must abide by their legal criteria etc- then the VA itself has certain legal criteria, under FTCA, that they absolutely must abide by and in my case they didnt and I just found out.It is something so serious to all veterans that I asked the Chair of the H VAC to look into it-
a malpractice lawyer -who I discussed this matter with recently- also agreed with me- the VA is certainly covering up more than we think-


Actually I am surprised that the CAVC did request a response from the VA on your Mandamus Writ.

Their request might still be in the VA mailroom or they are figuring out what to say in response.

Update as of today:

The VA responded on the last day within the window given by the Judge, but the Judge subsequently issued a second Order on July 19th, part of which indicates he found the VA's response lacking substance:

"The very limited information provided by the Secretary contains no explanation of what has happened with the claim in the two and a half years since the Board remand prior to its current status. While the Court cannot intervene if delay is the product of an overburdened system, the Court is not convinced that the delay in this case amounts to anything other than an arbitrary refusal to act on the petitioner's claims. See Costanza v. West 12 Vet.App. 133,134 (1999)(per curiam order)."

The Court then gave the VA another 30 days to provide the status of the claims included in the remand. Sounds like the Court is trying to bend over backwards not to grant the writ, to the point of supplying an argument to the VA to use. The interesting thing is that VA blamed the delay in its response to "the complicated procedural posture of the case," without explaining what that meant, exactly. We argued that it means blaming the nature of the claim itself for causing its own delay, and not external forces like workload or as the Court defined it, an "overburdened system."

I'm amazed we got this far...

Actually, I think the Court is on your side and the VA better cough up something in 30 days. Congrats I expect that VA will give you an answer probably at last minute.

The fact that VA is trying to squirm out of this means you pretty much have nailed their scaly hide to a wall. I doubt that the Judge will grant them any more time but don't be surprised if the VA asks you to agree to more time which if it was me I would say sorry you have taken entirely to long get on with it.

Good Luck and Congrats!!!!!

I believe its the same for all federal claims. You have to add 5 days for mailing. If they get 30 days you have to add holidays and 5 days for mailing.

I am assuming you have an attorney.

Ruby

Congrats are still in order from me- you did succeed on your writ in my opinion- at this point-

99% of MAndamus writs do not get this far at all-

I mentioned here the 30 day thing too-

The OGC on May 21,22,or 23rd gave my POA 30 days in which to respond to a complaint I had filed against individuals employed by the state veterans division.

Last week the OGC attorney said the 30 days were just about up and actually they are by now-

still I did not get clarification-30 working days?
I think it was just 30 days period.

Still in your case it IS remarkable what you have done-

A Mandamus writ means you want the court to order the VA to do something-
it accomplished that so far-you did a superb job!

Vicki-how long has the claim been on the remand-without action?

Ruby, this is a pro se mandamus writ request. No attorney on this one. If we get a decision and don't like it, we appeal to the Court of Appeals for Veterans Claims, and only then can we get an attorney (this all started prior to the attorneys for vets legislation that passed last year, and wasn't grandfathered in, so we had to go it alone). Remands pending at the AMC cannot receive attorney representation, either, which is why we decided to try to force the issue, one way or the other, out of there.

Berta, the appeal of the initial rating decision for organic mental syndrome claim (for which the VARO never issued an SSOC), started in 1994 (initial claim filed in 1993). The first Board remand sent to the VARO was in March 2001. The second remand sent to the VARO was in June 2003. Then, another appeal for increase for service-connected incisional hernia (and an appeal for a separate rating for abdominal scarring, which was incorrectly rolled into the 0% rating for the hernia instead of being rated separately per Board precedent), was Board remanded in October 2005, along with third remand for organic mental syndrome, only that time, it was sent to the Appeals Management Center. Then in March 2008, without any rating decision from the AMC, the Board noted the delay, but did nothing but to again remand those appeals back to the AMC. So this results in a seven+ year remand for the organic mental syndrome claim and almost three years for the hernia related claim plus the appeal re. the related scar.

I don't know or understand anything in regards to this area per se. I have represented myself in court matters and understand the system to a point (area of law I needed to know)

Its 30 days from the date plus 5 for mailing and any holidays in that timeframe must be added. also if a reply is due on a weekend by date then they/you have until 5pm on monday to get it in.

I don't know the legal term for this area just for regular federal courts. Any time they don't repond within the timeframe you file a motion to request something. such as filing a motion to compel something, motion for sanctions for not responding, file an order to preclude anything they may provide to the courts as evidence from that time.

Never give them time to get evidence. If this follows regular federal court rules I can send you info to help you understand what and how to do it.

Thanks, Ruby. So far, the Court isn't asking us whether we want to give the VA another 30 days here, or 30 days there. The Court is just going ahead and giving it to them. I guess we'll just sit tight and wait and see what happens by July 20th. Also, I misspoke when I said the Judge's second order was dated July 19th, that should have been June 19th.

So, we filed the original writ request I think it was April 14th, the Judge issued an order on May 1st giving the VA 30 days to respond, the VA responded on June 2, we issued a reply brief on June 9, the Court issued a second order on June 19 giving the VA another 30 days to answer the question posed in the Court's first order (which the VA's response did not answer), and we just filed an addendum to our response on June 25. We did this to try to neutralize the argument we suspect the Court is hinting at for the VA to use, to give the Court grounds to dismiss the writ request (due to the VA's workload). The VA never cited its workload as a reason for the delay, but instead, stated the delay was due to the "complicated procedural posture of the case." Plus, we argued that neither scenario explains why the VA continues to rate newer claims and newer remands than this one. If the workload is so overwhelming, why does the VA have time to give newer cases priority over older Board and Court remands, which by the way, is contrary to the law (rhetorical question). So, we do what we've become very good at doing -- we wait...

I don't know the rules so read them and see what type of motion to file if they don't respond within that timeframe. Normally, a court will give the opposing side upto 2-3 extensions to do something. That is pretty standard. After that point they get pissed.

If a response is due on the 19th + 5 on the 25th file something (whatever it maybe called) that they have ignored the Courts ruling and you are requesting that the Court rule in your favor (whatever your asking for).