As documented by various news organizations, the Yale University Veterans Legal Services Clinic [hereinafter “Yale Clinic”] has filed a petition for writ of mandamus regarding the delay in adjudication on appeal for a Vietnam veteran, Mr. Conley F. Monk, before the Court of Appeals for Veterans Claims (CAVC). While petitions for a writ of mandamus before the CAVC are filed and denied on a daily basis by the CAVC, Mr. Monk has requested certification of class action. The Military Times has provide an overview of the issue at Military Times Article. I have obtained copy of Mr. Monk’s petition that can be read at Monk_v_McDonald_Mandamus_Petition_FINAL_150406.
In previous blogs, I have commented on how the All Writs Act, 28 U.S.C. § 1651, is really not the appropriate statutory vehicle to address systemic problems within the VA adjudication system under Title 38. Further, the Yale Clinic is requesting that the CAVC adopt a Federal Rules of Civil Procedure that permits certification as a class action . . . which the CAVC has previously rejected. From my humble perspective, given that the Federal Circuits have no jurisdiction to resolve issues under Title 38, I suspect that only executive or legislative action will resolve what even the Department of Veterans Affairs acknowledges is a problem. Regardless, my gratitude to the Yale Clinic for their representation of Mr. Monk both now and in a prior class-action suit involving administrative discharge procedures before the DRB/BCMRs, Monk v. Mabus.
From the standpoint of judicial review, and again from my humble perspective, a direct challenge to rulemaking authority (or lack thereof) to the Court of Appeals for the Federal Circuit may be the best avenue of redress under 38 U.S.C. § 502. To those readers with an understanding of Section 502, I do realize there are jurisdictional issues with an action under this statutory provision as well. Under the Administrative Procedure Act (APA), there is a requirement that the federal agency take action within a “reasonable time.” See 5 U.S.C. § 555(b) (“[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it ….”).