COVA–ERSPAMER v. DERWINSKI–WRIT OF MANDAMUS


What is a Writ of Mandamus? Why is it only available at the Court of Veterans Appeals? So many questions about an arcane legal term come to mind. Let’ look at this item and figure out how it fits into the scheme of Veterans Law. First, the definition:

writ of mandamus – an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official’s discretion; used only when all other judicial remedies fail

Mandamus emanates from the the verb to mandate. We have a judicial system for Veterans that seems to be in perpetual disconnect. If you try to get in touch with them (if you can), they take months or years to get back to you. If you file a claim and lose,  you can spend years (or decades, in Jean Erspamer’s and my case) trying to right the wrong.  Some get frustrated and attempt to rectify this via a Writ. History tells us this is futile in some respects. What it will do is get action.

Before filing my writ in January 2010, I studied the rules and discovered it might work for me. I was wrong. I underestimated the gusto the VASEC was willing to employ to throw this out. Then I got sick from the third and fourth operations and couldn’t respond quickly enough. The second error was realizing what it can and can’t do. Quite simply, a Writ can only force VA to do that which they are supposed to be doing or already have done for you. If you have not gone up the ladder to appeal and been denied, then you have not exhausted all your legal remedies. Forget that it may take 15 years to get justice. If you don’t do that first, you haven’t used every legal remedy at your fingertips. If you find VA has fallen asleep at the wheel as the Erspamers did, then there is some legal justification for it.

Here is the Court’s simplified checklist for issuing a Writ;

1) The petitioner must lack adequate alternative means to attain the desired relief, 
thus ensuring that the Writ is not used as a substitute for the appeals process

2) the petitioner must demonstrate a clear and indisputable right to the Writ

3) the Court must be convinced, given the circumstances, that the issuance of the Writ   is warranted. 

4) Moreover, when delay is alleged as the basis for a petition, the Court has held that a clear and indisputable right to the Writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.

Item #4 was what I used as a reason. I theorized that I had been waiting for 15 years for a decision on my claim. It was granted in 2008 but did not grant back to 1994. I had filed my request for a DRO review and waited a year. Nothing happened so I wrote a check for $50.00 and sent in my petition for extraordinary relief. I did some research insofar as making sure there was a good reason for it. I got the bum’s rush for one reason. The Court said I had not exhausted my appeal remedies and the VASEC artfully turned it into a discussion about my tinnitus claim and ignored the hepatitis/ PCT. This is a classic case of be careful what you write and don’t write.You have to put handcuffs on all the words so they don’t break free and move around. It also helps not to have surgery right in the middle of it and find yourself unable to respond.

After I filed for the Writ, I started doing research about it. If I knew now what I didn’t then, I’d be $50.00 richer. You can only get traction at the Court with a Writ if the VA  is being unnaturally intransigent and thumbing their nose at you. On the other hand, if you have an extra fifty bucks and just want to get the Secretary’s attention, believe you me, you will. A Writ shines a bright light on your claim. It draws attention to it as if you went downtown wearing your wife’s underwear and nothing else. The bitch for a Writ needs some substance  so the VASEC has to drop what he’s eating, put down the martini glass and run back up to Vermont Ave. NW to deal with this. If Sen. Tenny Runners is your state Senator, he  engages the Hyperdrive Motivator. Remember, she’s the head of Veterans Affairs in the Senate and controls the VA’s purse strings. You piss her off and risk jeopardizing next year’s budget. This is why Veterans from Washington State get more “attention” from the VA.

So, you file for a Writ and complain that Uncle Victor has been dogging this for 15 years and you want action now. The VASEC has to reply in a short period of time. This means he has to find out WTF is going on first. A frantic call goes out to your VARO to dredge up the files and whip up a report. This gets faxed back to D.C. on a DEFCON 1 setting. The General Counsel writes it up and files it with the Court. If it is short on answers, the Court will caution the Secretary that he’s on mighty thin judicial ice. Nine times out of ten, you will discover that VA actually accomplished what it was you were bitching about while you were filing and the decision or SOC just crossed paths in the mail is all.  It is just a remarkable coincidence according to the VA poobahs. This proves in my mind that even thought you will rarely win this game, you will set fire to someone’s ass. Typing in Mandamus and 2011 on the CAVC search bar brought up 189 hits. If you chose to sort them by date, this one comes up first.

Alvarez Writ

It’s a pro se filing by one Shirley R. Alvarez who is peeved about a few things. Since she is slightly verbally challenged, she “appropriates” another Mandamus filing she saw published somewhere and substitutes her name where appropriate. This is called plagiarism everywhere else you go. Vice President Joe Biden was caught doing this at Syracuse University in 1965. His parents probably put a wing on the Law Library and made it right. I don’t think the Court was impressed with Shirley’s ingenuity in crafting it, but they didn’t put her in jail for it. The VASEC, however,  was apoplectic over her appropriation of another’s legal filing and sought to have it thrown out on those grounds alone.

I searched high and low in 2010 for a winning Mandamus and found two old ones when I filed mine. Interestingly, the VASEC  fought the Court tooth and nail when the first Writ appeared and said the CAVC did not have the right to even entertain one. This was a tremendous waste of judicial resources. The score right now is Court 28,000- VA 0.

One of the earliest cases of a Writ occurred in 1990 when the COVA was still unpacking and setting up shop. Ernest G. Erspamer got a heavy dose of radiation from watching our government bend atoms down in the South Pacific (Bimini Atoll) in 1946. Considering they destroyed the place and made it glow in the dark, it would seem that they’d give his claim more than a cursory glance. Not. His claim was shot down in October of 1947 and that was the end of it for 32 years. Mr. Erspamer eventually came down with Chronic Myelogenous Leukemia and wasn’t long for this world.  He refiled in June of 1979  and waited as we all do. Sure enough, the cancer caught up with him and  he punched out in 1980. Unfortunately,  his claim left the cockpit with him.

Jean A. Erspamer was peeved to say the least and she refiled to take his place. What the hey? She had kids to feed and the military had fried her husband, To add insult to injury, they refused to take responsibility for it. This would breed anger in her son Gordon whom we will hear much about later in VA history. The RO made quick work of this and denied her in June of 1981. The battle lines were drawn and Mandamus history at the COVA was quietly brewing on the other side of the continent like the Perfect Storm.

Her appeal before a traveling BVA  Board Panel was a hearing  in Frisco in February of 1982. Remember that back then a panel Board (3 VLJs) consisted of one doctor who also was a judge. This arbitrary power was used extensively to deny Vets even in the presence of medical evidence supporting the claim. If the Board Doctor/Judge said it was inherently incredible or impossible, that was the end of it. The end of it was six months later on August 29th, 1982. Jean got the velvet hammer. I’m sure they wrote her one of those “Gee, Miz Erspamer. We really tried to grant this claim, but you know what? We just couldn’t in good conscience go out on a speculative limb and say an atom bomb caused this disease in your husband. Even though he was a mile away, that much ionizing radiation hasn’t been proven to kill anyone. Well, granted there was that Hiroshima thing, but they were a lot closer”. That’s how the VA worked in 1982. Things haven’t changed much for the better in 2012. They just learned how to moonwalk like Michael Jackson.

April 1983 arrived and Mrs. Erspamer decided she wasn’t finished. She file a MFR  and waited a year for another hearing. The BVA obliged her in March 1984 and also heard an alternative motion to reopen the claim for new and material evidence. Her Senator must have browbeat these turkeys into a remand and sure enough-down it went to the SFRO for a “dose reconstruction” of how much glow in the dark paint Ernest picked up over the years. This was the Dog and Pony show part of the process. VA will appear to be diligently going through the motions. The “discovery” crew in the RO set up the dartboard and labeled certain sections with percentages. They moved the throw line back twenty feet to make the process fairer for the government and less speculative.

On September 6th, 1986- having done no dose reconstruction and depending strictly on the dart board results, the RO issued a SSOC continuing the denial. Two months later they belatedly sent it back to D.C. and a final BVA decision. I guess we could predict what was going to happen next. What amazes me is the chutzpah of the RO. Did they think they were going to fake out the VLJ?  It was probably more like:

Fred ( VA examiner) : “Gee, Barney. How did you explain that Erspamer thing with no IMO on the dose?”

Barney (VA rater) : “Ne problemo, Fred.  I just said we stand by our original VA examiner’s findings after a complete review of all the EOR. Besides, I retire in five months, so I won’t even be here for the remand.”

At the end of April 1987, the BVA noticed the lack of a dose estimation and remanded it back to SF for the report. This time they ordered it to be an “independent expert” and put all number of codicils on it to make sure someone who could spell dosimeter actually reviewed the records. Alas, any admonition in the VA for “independent” review simply means the VA gets to choose who will be the “Designated Uninformed Dude Expert” (DUDE). This time it was some honcho at the National Institute Of Health. The BVA’s Chief Benefits Director was still allowed to “review” the findings (with an eraser) and then it was to be shipped back to the dart board crew in SF.

The BVA must have been getting undue Congressional Interest attention because this time the instructions for the remand came with a hurry up clause and an unheard of request to keep Mrs. Erspamer apprised of the latest dart board prognostications.

Three years later this was where matters stood when Mrs. Erspamer filed her petition for a Writ December 11th, 1989. In spite of the BVA’s plea for information on a timely basis and thirty letters to that effect from Mrs. E, the RO was steadfast. They marched to the beat of a different drummer. Mrs. Erspamer could just cool her heels and wait her turn like any other widow. Who did she think she was, anyway?

Jean Erspamer was fit to be tied. She laid out her Writ terms in no uncertain language:

1) The RO should be ordered to comply with the remand instructions within 60 days.

2) Order the Department of Veterans Affairs to pay an independent contractor to do the reconstruction pronto.

3) Prohibit the contractor from contacting her.

4) Award attorney’s fees and costs for having to go through all this stupidity.

It was heard before the Court February 7th, 1990 and decided sixteen days later. Mrs. Erspamer, in conjunction with the claims filing by Mr. Erspamer, had now been actively engaged in this for over eleven years. Well, putting that in context, it was only eleven “VA years”- a mere blink of the eye for a rater. The very first thing that had to be hashed out was the turf question. To be more precise, did the new COVA have the authority to even venture down this path?

Despite the confirmation of the authority of this court to
exercise All Writs Act jurisdiction by the terms of the All Writs
Act itself, the plain language and legislative history of the VJRA,
and the case law on Article I courts, respondent nevertheless takes
the position that such jurisdiction is lacking. Without benefit of
citation to any relevant authority, respondent argues that it
cannot be the subject of the All Writs Act jurisdiction of this
court because the DVA is an executive agency, not an inferior
judicial tribunal. We disagree. Erspamer v. Derwinski (1990)

Yes, the VASEC was apoplectic and this wouldn’t be the last time. His days of ruling the VA roost with an iron fist were numbered and this was just the beginning of a long line of bitch slaps. After consuming a number of adult beverages over several weeks of working lunches in the conference room, the Court fleshed out what I think is one of the most cogent paragraphs in their early history. It’s too bad they didn’t make a plaque out of it and hang it at the entrance to 625 Indiana Ave. NW or chisel it into granite tablets like Moses.

Claims for benefits due to military service clearly implicate
human health and welfare concerns as distinguished from economic
regulation. In consideration of the “nature and extent of the
interests prejudiced by delay,” we must reject the suggestion made
by counsel for respondent at argument that any and all prejudice
resulting from the decade’s delay would be offset by retroactive
payment should the DVA ultimately determine that benefits were
warranted. Payment of benefits ten years after they were due could
never serve as full compensation. Moreover, the interests
resulting from delay here transcend those just of the petitioner.
“Quite simply, excessive delay saps the public confidence in an
agency’s ability to discharge its responsibilities and creates
uncertainty for the parties, who must incorporate the potential
effect of possible agency decisionmaking into future plans.” Potomac                              Electric Power Company v. ICC, 702 F.2d 1026, 1034 (D.C.Cir. 1983).                                Public confidence is particularly sapped where, as here, the delay results                      from the failure of one component of an agency to comply with the                         authorized mandate(s) of an office of the same agency speaking with the                        express authority of the head of the agency.  Erspamer supra

The sentence in red was VASEC’s “Let them eat cake” moment.

In the end the Court gave the VASEC six months to fix it. The reason was that the VJRA had recently been enacted and this meant everyone was an FNG including VASEC. It just wouldn’t be fair to slam him with the shortcomings of his inferior predecessors who didn’t hold cabinet rank. Interestingly, as we see frequently, this matter must have had a happy ending because Mrs. Erspamer did not find herself before the Court again. Nor did we see her make an appearance on appeal of a denial in Mr. Erspamer’s old claim. As for her son, Gordon? He decided to seek fame and fortune holding the VA’s feet to the fire for all the rest of us Veterans.

http://www.abajournal.com/news/article/meet_gordon_erspamer_vas_worst_nightmare_in_ptsd_benefits_case/

The infamous saga of Ernest Erspamer:

Erspamer_89-14

My son currently is attending law school at Gonzaga. While he does not intend to make the VA his sole focus in life, he feels he owes it to us as Veterans to have a voice in the courts. It was my Chapter 35 benefits we fought so hard for that made this possible. What could be more fitting than the shoe soon to be on the other foot as Gordon Erspamer has done with the VA “footing” the bill? I cannot begin to tell you how proud I am of him in pursuing not only his Juris Doctor’s degree, but a Masters in Forensic CPA. It seems the more denigration the VA heaps at our doorsteps, the stronger our resolve becomes. This website is living proof of the adage “We’re mad as Hell and we’re not going to take it anymore.”

Ladies and Gentleman Vets, I give you Buckwheat Junior (circa 1989)-VASEC’s  latest   nemesis waiting in the wings. Granted, he doesn’t look that intimidating in this picture, but that’s all part of the plan. Never show your strengths.

About asknod

VA claims blogger
This entry was posted in Extraordinary Writs of Mandamus, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s