On June 23, 2014, the Court of Appeals for Veterans Claims (CAVC) issued an unpublished order denying Mr.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 The unpublished order can be accessed at Hamblin v. Gibson.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 What was unusual was other language in the unpublished order: (1) “the RO has adjudicated the petitioner’s claims at issue only after a petition has been filed, which creates a perception that incentivizes the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).