Gardner-Dickson: A Writ Denied

 

Gardner-Dickson v. Wilkie, Case Number 19-4765, decided October 21, 2020 involves a request for a writ pursuant to the All Writs Act.

Regarding the writ, the veteran asks for a review of a 2019 Board remand and a finding the remand was wrong and an order directing the Secretary to readjudicate her claim with a corrected view of the law.  The idea was to stop the hamster wheel of remand by the Board and further development by the RO when the evidence was in favor of a grant.  However, the court refused to grant because it is essentially a merits ruling on a non-final Board decision.  The Court stated: “It is well settled that we have jurisdiction over Board decisions, and a nonfinal Board remand order is not a decision for purposes of section 7252.”  Id. at *3.  It rationale that “A

Board remand that does not make a final determination about the benefits sought is ‘not a decision within the meaning of section 7252(a).’”

The veteran anticipated this ruling and also sought to rely on 38 U.S.C. § 7261.  Section 7261(a)(2) authorizes the Court to "compel action of the Secretary unlawfully withheld or unreasonably delayed."  Id.  But, the Court refused the invitation to use Section 7261 to expand its reach explaining: “[s]ection 7261 merely sets out the scope of the review to be conducted by th[is Court] in cases within its jurisdiction; it does not itself create jurisdiction.”  Id. at * 4.

The Court also discussed unreasonable delay and relied on the TRAC factors to find none was proven.  Id. at *5-6.

A dissent by Judge Greenberg noted the Board had remanded despite also finding “the record contains no evidence contradicting the Veteran's reports.”  Id. at *11.  He noted:

Rather than being granted benefits based on uncontroverted evidence, the veteran died while VA delayed adjudicating his claim by remanding for additional evidence. This could not be what Congress intended when it enacted legislation providing benefits based on herbicide exposure.

Id. at *11.  He also wrote: “The Board’s attempt to remand the claim to determine further facts is to gather nothing but negative evidence.”  Id. at *11.  He would have granted service connection.

Decision by Judge Falvey and joined in by Judge Meredith.  Dissent by Judge Greenberg.

To know more about whether Thomas Andrews can help you, please visit my website.