"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Saturday, February 5, 2011

When Does the VA handle a Remand Expeditiously?

Harvey: What is Expeditously Handling an Appeal

Cleveland D. Harvey v. Eric K. Shinseki, Opinion Number 10-1284, decided January 25, 2011 involves whether the VA expeditiously handled a remand.

In June 2008, the Court issued a decision remanding the veteran’s case for the limited purpose of calculating his compensation benefits. However, what resulted was a “parade of administrative miseries that unnecessarily delayed the execution of the specific award and easily accomplished Court order and ultimately resulted in the petitioner not receiving a final answer on his remand until two years after the issuance of this Court’s decision”. Id. at *1. While waiting for the decision, the veteran in March 2010 filed a motion for extraordinary relief with the Court. In July 2010 the VA complied with the initial remand and found the veteran had been previously fully compensated. The VA determination was correct but the Court took the opportunity to incur its wrath on the VA for its delay and found the VA in contempt of its earlier order requiring expeditious treatment of the remand. The Court was clearly expressing its displeasure at long remand times in what should have been a simple ministerial calculation. However, it was careful to limit the holding by saying “the Court appreciates that compensation claims are not monolithic and some cases, because of their complexity, may require greater efforts by the Secretary. Thus it must be clearly understood by those representing claimants (as well as the claimants themselves) that the Court will not blindly issue writs or sanctions where delay is the result of an overburdened system, rather that a disregard for the importance of compliance with a Court order.” Id. at *4.

The Court sanctioned the VA by awarding claimant and amicus curiae brief attorneys attorney’s fees. However, the Court did reduce rates from $300 and $400 an hour to $188.57 and $125 respectively. The reduction to $125 seems to have been error by the Court by using the incorrect CPI-U for the South and I know a motion to reconsider has been filed as to that aspect. If the Court were not to change that determination it could have serious repercussions to attorneys who would suddenly find their time drastically devalued and potentially cause some attorneys to question their willingness to accept these cases.

The case demonstrates the Court is clearly growing frustrated by the VA's long delays, something any practioner or veteran is well aware of, but also is a limited response to it. It surely opens the door to more motions for extraordinary relief but the success of those motions will probably depend on the nature of the remand and whether it can be characterized as ministerial.

Decided by Judges Hagel, Lance and Schoelen.

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