Greb v. Wilkie

Decision Date18 March 2019
Docket Number19-0046
CourtCourt of Appeals for Veteran Claims
PartiesJohn H. Greb, Petitioner, v. Robert L. Wilkie, Secretary of Veterans Affairs, Respondent.

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Douglas J. Rosinski, Esq. VA General Counsel (027)

Before TOTH, Judge.

ORDER

JOSEPH L. TOTH, JUDGE

The petitioner, veteran John H. Greb, has a claim for a total disability rating based on individual unemployability (TDIU) that is currently pending before the Board. The Board has remanded his case to the Appeals Management Office (AMO) for additional development several times, most recently in April 2018. Mr. Greb points out that his claim has been pending for almost a decade and asserts that the AMO is not conducting the Board's ordered development in an expeditious manner as required by 38 U.S.C. § 5109B. He also points out that the Board's rules of practice require it to remand claims to an agency of original jurisdiction (AOJ) and argues that his due process rights are violated because the AMO is not an AOJ. 38 C.F.R. § 19.9 (2018).[1]

Thus on January 4, 2019, he filed with the Court a petition for extraordinary relief in the nature of a writ of mandamus ordering VA to immediately readjudicate the claim for TDIU on the grounds of extraordinary delay, reimburse him for his costs and fees, and provide any other reasonable and appropriate relief. The veteran also asks the Court to compel VA to identify the statutory authority for the creation and operation of the AMO and identify the authority that allows it to act as an AOJ for the purpose of receiving, developing and readjudicating remanded claims.

Under the All Writs Act, 28 U.S.C. § 1651(a), this Court has the authority to issue extraordinary writs in aid of its jurisdiction. See Cox v. West, 149 F.3d 1360 1363-64 (Fed. Cir. 1998). However, "the 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 may issue a writ: (1) a petitioner must demonstrate a 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) a petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that the issuance of the writ is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).

Relief based on unreasonable delay of agency action may be sought via mandamus. But whether an allegation of unreasonable delay warrants extraordinary relief turns on the analysis set out in Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018) (applying factors found in Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984)). Factors for a court to consider include:

(1)the time an agency takes to make decisions must be governed by a "rule of reason";
(2)whether Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, which may supply content for this rule of reason;
(3)delays arguably reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
(4)the effect of expediting delayed action on agency activities of a higher or competing priority;
(5)the nature and extent of the interests prejudiced by delay; and
(6)impropriety or bad faith on the agency's part are not necessary to finding unreasonable delay.

Id. at 1344-45. The Court acknowledges that when VA benefits are at stake, factors (3) and (5) will usually weigh in favor of granting a petition. Such is the case here-Mr. Greb is not employed and an award of TDIU will alleviate the financial burden that unemployment brings. So, Mr. Greb has a strong interest in seeing the matter adjudicated as soon as possible. But the remaining factors still do not justify the issuance of a writ based on unreasonable delay in this case.

As to the first factor, VA does have an affirmative duty to expedite remanded matters. 38 U.S.C. § 5109B. But even a duty to expedite must be balanced against the simple fact that certain cases, because of their complexity, take longer to develop than others. Martin, 891 F.3d at 1346 (observing that "more complex and substantive agency actions take longer than purely ministerial ones"). Here, the AMO has been charged with obtaining updated records from each VA and non-VA treatment provider that previously submitted evidence in this matter. Petition, Exhibit (Exh.) QQ. Only after that development is complete, according to the Board's remand, must the AMO obtain an addendum opinion or schedule Mr. Greb for a new neurocognitive examination. Id. These are not ministerial actions; as the Federal Circuit noted in Martin, a delay that is due to VA's duty to assist the veteran by obtaining additional evidence is not the same as a delay that results from a failure to perform ministerial tasks such as placing a matter on the Board's docket. 891 F.3d at 1346. And as recently as November 2018, VA assured Mr. Greb that it is still developing the evidence in this matter. The Court thus finds that the first factor weighs against the veteran. The same is true for the second factor, because Congress has not imposed a specific timetable for adjudicating remanded matters.

The fourth factor, requiring the Court to weigh the effect of granting mandamus on "other applicants who have filed claims for benefits," also weighs against the issuance of a writ. Id. VA is processing Mr. Greb's claim under a system that generally requires it to take actions in the order that claims are received and remanded. Petition, Exh. RR. If the Court were to grant the writ, Mr. Greb would bypass many other veterans who are also awaiting VA action. Although Mr. Greb is not employed and TDIU benefits would almost certainly improve his financial outlook, he does have a 50% rating for PTSD that is providing him with some income. Thus, in the context of this matter in which the petition doesn't overcome the rule of reason, this factor weighs against the petition. As to the sixth factor, there is no evidence of impropriety and the Court has not required a showing of impropriety to reach a decision here. Thus, the veteran hasn't shown entitlement to the writ based on unreasonable delay.

Mr Greb next argues that his due process rights were violated when the Board remanded his claim to the AMO. "If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision," the...

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