Stratford v. Peake , 2008 U.S. Vet. App. LEXIS 770 ( 2008 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-0355
STEVEN G. STRATFORD , PETITIONER ,
V.
JAMES B. PEAKE , M.D.,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT .
Before HAGEL, MOORMAN, and LANCE, Judges.
ORDER
On February 6, 2008, the petitioner filed through counsel a petition for extraordinary relief
in the nature of a writ of mandamus seeking an order of the Court to, among other things, direct that
the respondent restore the petitioner's award of service connection for post-traumatic stress disorder
(PTSD) awarded to him in May 2007 by a decision review officer (DRO) decision. The petitioner
states that the San Diego, California, regional office (RO) granted service connection for his PTSD
with an effective date of August 20, 1987, and that it subsequently withdrew this decision and issued
a Supplemental Statement of the Case in October 2007 that denied entitlement to service connection
for PTSD. Specifically, the petitioner asserts that the May 2007 DRO decision was reviewed and
changed pursuant to a new Compensation and Pension Service (C&P) review procedure targeted at
decisions awarding more than $250,000 or that award an effective date retroactive eight or more
years. The petitioner argues that this new C&P procedure is unconstitutional.
On January 25, 2008, the RO issued a new DRO decision granting service connection for
PTSD, effective November 1987. In his Court-ordered response, the Secretary asserts that the May
2007 DRO decision was only a "draft" and was never sent to the petitioner. The Secretary also
maintains that, because Mr. Stratford has been awarded benefits in the January 2008 DRO decision,
the petition is moot and should be dismissed.
"The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations."
Kerr v. U.S. Dist. Ct. N. D. Cal., 426 U.S. 394, 402 (1976). Three conditions must be met before
a court may issue a writ of mandamus: (1) The petitioner must lack adequate alternative means to
obtain 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, and (3) the court must
be convinced, given the circumstances, that the issuance of a writ is warranted. See Cheney v. U.S.
Dist. Ct. D.C., 542 U.S. 367, 380-81 (2004).
The petitioner fails to demonstrate that he lacks adequate alternative means to obtain the
desired relief. Specifically, to the extent Mr. Stratford has received an adverse decision on his claim
and wishes to challenge the decision and the VA process used in connection with the decision, his
avenue of relief is to appeal that decision to the Board and then, if needed, to the Court. See Lamb
v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002) (noting that extraordinary writs are not substitutes
for an appeal). As to Mr. Stratford's request for a Court order directing that VA provide a complete
copy of his VA claims file, he has not demonstrated that VA is refusing to comply with his October
2007 request pursuant to the Freedom of Information Act and Privacy Act. See Petition, Exhibit 10
(January 23, 2008, letter from the Board of Veterans' Appeals notifying Mr. Stratford that his request
was forwarded to the VA regional office for reply and/or processing).
To the extent Mr. Stratford alleges delay in providing the requested records, the Court notes
that when delay is alleged as the basis for a petition, this 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. Costanza v. West, 12 Vet.App. 133, 134 (1999) (per curiam
order). Mr. Stratford has not demonstrated that to be the case here.
Upon consideration of the foregoing, it is
ORDERED that the petition for extraordinary relief in the nature of a writ of mandamus
is DENIED.
DATED: June 30, 2008 PER CURIAM.
2