Veteranclaims’s Blog

February 11, 2022

Single Judge Application; writ mandamus granted; petitioner should have received a decision in this matter many years ago and VA’s fumbling of a simple remand instruction is hopefully, although not likely, unique to the petitioner’s claim history; VA’s 7-year epic and unreasonable delay in properly adjudicating this matter compels the Court to issue a writ. Kerr, 426 U.S. at 402; see Mote v. Wilkie, 976 F.3d 1337, 1345 (Fed.Circ. 2020) (reaffirming this Court’s power to impose “lenient, yet still specific” deadlines);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1132
RONNIE L. BENNETT, PETITIONER,
V.
DENNIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, 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 February 22, 2021, petitioner Ronnie Bennett filed a petition for extraordinary relief
requesting, in pertinent part, that the Court compel VA to adjudicate his remaining section 1151
claim. Petition at 20-21.
The following facts are taken from the Court’s 2016 memorandum decision, see Secretary’s
Exhibit at 138-48: In August 2010, the Board of Veterans’ Appeals directed the regional office
(RO) to develop a claim for benefits under 38 U.S.C. § 1151 on a theory that the appella nt’s
depression was aggravated when he was wrongfully removed from the VA housing program
provided by Alpha Omega Veterans Services. In September 2012, the Board remanded the
appellant’s section 1151 claim to the RO for development. In February 2014, the Board again
remanded the section 1151 claims for the RO to prepare a memorandum related to the services
provided to the appellant by Alpha Omega Services and address whether Alpha Omega provided
rehabilitative services through its contractual relationship with VA under either 38 U.S.C. § 1718
or § 3115. In October 2016, the Court remanded the section 1151 claim, concluding that the Board
failed to ensure compliance with the February 2014 remand order that asked the Alpha Omega
Veterans Services to prepare a memorandum related to services Alpha Omega Veterans Service
provided the petitioner and whether it provided rehabilitative services through its contractual
relationship with VA.
In May 2017, the Board again remanded the petitioner’s claim for compensation under 38
U.S.C. § 1151. See Secretary’s November 29, 2021, Response, Exhibit at 164-202. In that remand,
the Board ordered substantially the same development it ordered in its February 2014 remand,
including the preparation of a memorandum that describes the program administered by Alpha
Omega Veterans Services in which the petitioner participated. See id. at 195-98. In July 2017, the
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Agency of Original Jurisdiction (AOJ) initiated development of the section 1151 claim by
requesting information from Alpha Omega Veterans Service about services that it provided the
petitioner. See id. at 347, 357, 358-59, 360. In August 2017, an additional request was submitted.
See id. at 357. In August 2017, the AOJ received a response from Alpha Omega Veterans Service
detailing the services that were provided to the petitioner and the circumstances surrounding the
petitioner’s termination from the program. See id. at 347, 361.
In December 2019, more than 2 years after it received a response from Alpha Omega
Veterans Service,1 the AOJ issued a Supplemental Statement of the Case (SSOC) that continued
the denial of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a mental
disorder. See id. at 214-20. In December 2019, the AOJ also issued a Memorandum of Agreement
between the Memphis VA Medical Center and Alpha Omega Veterans Services. See id. at 350,
364.
Based on a letter from the petitioner to move forward with the appeal, see id. at 222, in
June 2020, the Board placed the appeal on its docket. See Secretary’s Exhibit at 224 (Board Exhibit
X). Yet, in a July 24, 2020, decision, the Board, again remanded the petitioner’s claim for
entitlement to compensation based on 38 U.S.C. § 1151 for a psychiatric disorder, other than posttraumatic
stress disorder. See id. at 226-44. The Board determined that a December 2019
memorandum did not substantially comply with its May 2017 remand directives. See id. at 241-

  1. The Board found that the memorandum presented the question of whether the services rendered
    by Alpha Omega Veterans Service were provided under the appropriate statute—whether the
    services were provided under 38 U.S.C. § 3115 or § 1718. Id. The Board, therefore, directed the
    AOJ to obtain copies of the contractual agreements between Alpha Omega Veterans Service and
    VA noted in the memorandum. See id. at 243.
    On October 3, 2020, a deferred rating decision was generated directing follow-up
    development pursuant to the Board’s July 2020 remand directives. It was noted that a copy of the
    May 8, 1999, contractual agreements between VA and Alpha Omega Veterans Services was
    needed. See id. at 353. On October 13, 2020, the AOJ contacted Alpha Omega Veterans Services
    by e-mail and by telephone for a copy of the May 1999 agreement. See id. at 353, 367. On October
    21, 2020, VA sent a supplemental development letter to the petitioner about the May 1999 services.
    See id. at 368.
    In November 2020, Alpha Omega Veterans Service responded, stating that it could not
    provide a copy of the May 8, 1999, contractual agreement with VA because such record was no
    longer available. See id. at 354, 371. Alpha Omega Veterans Services explained that it did not keep
    clients’ records from that far back. See id.
    In December 2020, the AOJ sent an electronic request to the Memphis VA Medical Center
    for a copy of the May 8, 1999, contractual agreements between VA and Alpha Omega Veterans
    Services. See id. at 354, 377. In January 2021, the AOJ sent follow-up requests (via email and
    1 The Court notes that it is unpersuaded by the Secretary’s response that this 2-year gap is partially justifiable
    by the fact the RO was working on other claims for the petitioner. See Secretary’s Nov. 29, 2021, Response at 12-13.
    3
    telephone) to the Memphis VA Medical Center for a copy of the May 1999 contractual agreements.
    See id. at 383, 384.
    In February 2021, the Memphis VA Medical Center advised the AOJ that it was unable to
    locate a contract between VA and Alpha Omega Veterans Service. See id. at 354. Subsequently,
    the AOJ advised the petitioner that the Memphis VA Medical Center did not have a record of a
    May 8, 1999, contract. See id. at 386.
    At the beginning of March 2021, VA issued an SSOC that continued the denial of the
    section 1151 claim. See id. at 270-77. The petitioner then elected to opt into the Veterans Appeals
    Improvement and Modernization Act (AMA) review system after receiving a VA Form 10182
    (Notice of Disagreement) form with his SSOC. On March 10, 2021, VA received the VA Form
    10182, wherein the petitioner indicated that he was seeking to appeal the section 1151 claim. See
    id. at 293. On March 17, 2021, the Board acknowledged receipt of the petitioner’s Board Appeal
    request and informed the petitioner that his appeal had been placed on the Direct Review docket,
    and that his selected option could result in the Board issuing a decision more quickly. See id. at
    299-301.
    In April 2021, the Court ordered the Secretary to provide a status update for the petitioner’s
    section 1151 claim within 30 days from the date of this order, and every 30 days thereafter until
    the Board decided the petitioner’s section 1151 claim. In January 2022, the Secretary responded
    for the 8th time to the April 2021 Court order with the following reply “the Secretary advised the
    Court again that the Board has not yet adjudicated the claim and can only adjudicate it in
    accordance with the placement of Appellant’s appeal on the Board’s docket.” January 20, 2022,
    Response at 1. The Board has not provided a timeframe as to when it expects that this matter will
    be adjudicated.
    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 Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998).
    This includes issuing writs of mandamus to “compel action of the Secretary unlawfully withheld
    or unreasonably delayed.” 38 U.S.C. § 7261(a)(2); see Martin v. O’Rourke, 891 F.3d 1338, 1342-
    43 (Fed. Cir. 2018). However, “[t]he remedy of mandamus is a drastic one, to be invoked only in
    extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). Three conditions
    must be met before the Court can issue a writ: (1) The petitioner must demonstrate the lack of
    adequate alternative means to obtain 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 issuance of the writ
    is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).
    The petitioner’s specific request for the Court to compel VA action is based on a claim of
    unreasonable delay. In such cases, the Court must weigh six factors to determine if VA’s “‘delay is
    so egregious as to warrant mandamus.'” Martin, 891 F.3d at 1344 (quoting Telecomms. Research
    & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir. 1984)). In TRAC, the U.S. Court of
    Appeals for the D.C. Circuit identified those six factors as follows:
    4
    (1) The time agencies take to make decisions must be governed by a “rule of
    reason”; (2) where Congress has provided a timetable or other indication of the
    speed with which it expects the agency to proceed in the enabling statute, that
    statutory scheme may supply content for this rule of reason; (3) delays that might
    be reasonable in the sphere of economic regulation are less tolerable when human
    health and welfare are at stake; (4) the court should consider the effect of expediting
    delayed action on agency activities of a higher or competing priority; (5) the court
    should also consider the nature and extent of the interests prejudiced by delay; and
    (6) the court need not find any impropriety lurking behind agency lassitude in order
    to hold that agency action is “unreasonably delayed.”
    750 F.2d at 80 (citations omitted).
    The Court rejects the Secretary’s argument that a writ of mandamus is not warranted in this
    case and concludes that all TRAC factors in this case weigh in favor of the petitioner. As to “the
    rule of reason,” we note that the Secretary’s response reflects more than a mere delay in claims
    processing. Seven years have passed since the Board remanded the petitioner’s section 1151 claim
    to merely to obtain information about the program the petitioner participated in at Alpha Omega
    Veterans Service. During this time, the matter was remanded by the Board 3 times, it sat for 2
    years at the AOJ with no development occurring and is currently sitting in line at the Board with
    no expected date provided for a decision. The “rule of reason” weighs heavily in favor of the
    petitioner. Id.at 80.
    The Court is unpersuaded by the Secretary’s contention that the “Board has pending appeals
    under the Direct Review docket that were received prior to Petitioner’s, and the adjudication of the
    Petitioner’s appeal outside of the docket order would displace those earlier appeals unfairly
    delaying the assignment of those appeals for a VLJ for adjudication. See Secretary’s November
    29, 2021, Response at 9 (internal quotations omitted). To the extent that the Secretary seeks to
    invoke “line-jumping” concerns, the Secretary’s concern regarding line-jumping is misplaced. See
    generally Ebanks v. Shulkin, 877 F.3d 1047, 1039-40 (Fed. Cir. 2017). The petitioner was already
    in an expedited line based on the fact his claim had been previously remanded. It is unclear why
    VA is sending VA Form 10182 to claimants like the petitioner following the issuance of a remand
    pursuant to 38 C.F.R. § 19.38. It appears that VA is not adequately explaining to claimants that
    remanded claims already are supposed to receive expedited treatment, see 38 U.S.C. § 5109B, and
    selecting the direct review lane merely puts their claims at the end of another line with no actual
    expectation for a faster adjudication.
    The petitioner should have received a decision in this matter many years ago and VA’s
    fumbling of a simple remand instruction is hopefully, although not likely, unique to the petitioner’s claim history
    . This delay was completely avoidable if the RO could have simply followed the
    instructions of the Board in February 2014 and properly accomplished all the necessary
    development at that time. Instead, it took 6 years to handle the basic instructions provided in the
    February 2014 remand and the Secretary has not offered a compelling reason why this delay is
    reasonable by any standard.
    5
    Though “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary
    situations,” VA’s 7-year epic and unreasonable delay in properly adjudicating this matter compels
    the Court to issue a writ. Kerr, 426 U.S. at 402; see Mote v. Wilkie, 976 F.3d 1337, 1345 (Fed.
    Circ. 2020) (reaffirming this Court’s power to impose “lenient, yet still specific” deadlines)
    . It is
    ORDERED that the Clerk is to return the petitioner’s January 24, 2022, filing as not
    contemplated by the Court’s rules and unnecessary to rule in his favor. It is further
    ORDERED that the petition is GRANTED. It is further
    ORDERED that the Board shall issue a decision regarding the petitioner’s section 1151
    claim within 14 days of the date of this order.
    DATED: February 10, 2022 BY THE COURT:
    WILLIAM S. GREENBERG
    Judge
    Copies to:
    Ronnie L. Bennett
    VA General Counsel (027)

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