Prewitt v. Wilkie, 19-4177
| Decision Date | 31 July 2019 |
| Docket Number | 19-4177 |
| Parties | George D. Prewitt, Petitioner, v. Robert L. Wilkie, Secretary of Veterans Affairs, Respondent. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
George D. Prewitt VA General Counsel (027)
Before GREENBERG, Judge.
On June 11, 2019, George D. Prewitt pro se filed a petition for extraordinary relief in the nature of a writ of mandamus alleging that on April 17, 2019, the Board of Veterans' Appeals ordered the implementation of new effective dates for the appellant's service-connected post gunshot wound conditions, and ordered that a Statement of the Case (SOC) be issued in response to an April 4, 1980, Notice of Disagreement (NOD). Petition at 1-2. The petitioner stated that two NODs, one dated April 15, 2016, and one dated October 6, 2016, should have been reviewed in the traditional appellate review process, but are instead being reviewed by a decision review officer. Petition at 2-3. The petitioner also alleged that the Jackson, Mississippi regional office (RO) had taken no action on his case as of June 10, 2019. Petition at 2.
The petitioner requested (1) an order seeking the prompt implementation of an April 17, 2019, Board decision, (2) an interest award based upon the Takings Clause of the Fifth Amendment of the U.S. Constitution, and (3) an order directing the Secretary to issue SOCs in an April 4, 1980 appeal, an April 15, 2016, appeal, and an October 6, 2016 appeal. Petition at 3-4.
On June 27, 2019, the petitioner submitted a motion to expedite the Court's decision. Motion 1 at 1-5.
On July 1, 2019, the petitioner submitted a motion for the Secretary to show cause why he should not be held in contempt for the unlawful actions of the Jackson RO. Motion 2 at 1-11.
On July 3, 2019, the Court ordered the Secretary to respond to the petition within 14 days and to provide the status of the petitioner's claims, including actions taken pursuant to the Board's April 17, 2019, decision, and the status of the petitioner's April and October 2016 NODs.
The Secretary responded on July 16, 2019. Response at 1-5. The Secretary provided evidence that, on June 7, 2019, the RO issued a rating decision effectuating the grants awarded in the April 17, 2019, Board decision. Response at Exhibit 1. The Secretary also provided evidence that, on June 25, 2019 VA released the funds due to the petitioner. Response at 2. The Secretary further provided evidence that, on June 14, 2019, the RO sent the petitioner correspondence informing him (1) that his 1980 NOD was recognized and of what next steps he should take regarding that matter, and (2) that the RO is acting on his claim for TDIU, which the Board found reasonably raised in the April 2019 decision. Response at 2; see also Exhibit 2. The Secretary notes that, although this information is not the SOC that the petitioner is seeking, it is evidence that the RO is undertaking the necessary development to issue that SOC. Response at 2. Finally, the Secretary provided evidence that, on July 3, 2019, the RO issued two SOCs one regarding the petitioner's April 15, 2016, appeal, and the other regarding the petitioner's October 6, 2016, appeal. Response at 2-3; see also Exhibits 4 and 5.
In a July 18, 2019, reply to the Secretary's July 16, 2019, response, the petitioner proceeds to litigate the merits of his claim. Petitioner's Response to the Secretary's Response at 1-19. However, these contentions are not appropriate in the writ context and the Court will not address them because the petitioner may raise them in the traditional appellate process. See Cheney v. U.S. District Court, 542 U.S. 367, 380-81 (); Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 2002) ().
The Court also notes that, although the petitioner argues in the June 2019 petition that he is entitled to an interest payment based upon the Takings...
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