Hendricks D. Caudill, Jr. v. R. James Nicholson

This version includes the Errata dtd 21Aug06 - e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 06-1541
HENDRICKS D. CAUDILL, JR., ET AL., PETITIONERS,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, ET AL., RESPONDENTS.
Before KASOLD, HAGEL, and LANCE, Judges.
ORDER
The petitioners filed a petition for extraordinary relief in the nature of a writ of mandamus
seeking an order of the Court that the respondents rescind their purportedly unlawful stay of
proceedings and adjudicate the petitioners' appeals on remand from the Court. The petitioners assert
that the Court reversed the determinations of the Board of Veterans' Appeals (Board) in each of their
claims that dual disability ratings for bilateral tinnitus were not available under the law, remanded
the claims for disability compensation benefits for service-connected bilateral tinnitus, and either
directed the Board to adjudicate whether the petitioner was entitled to dual ratings for bilateral
tinnitus pursuant to this Court's decision in Smith v. Nicholson, 19 Vet.App. 63 (2005),1 or directed
the award of dual ratings.
The petitioners also assert that each has received a letter from the Board that suspends action
on their respective claims until the Board Chairman rescinds Memorandum No. 01-05-08 (April 28,
2005), as directed by the Secretary in an April 22, 2005, memorandum, that stayed proceedings in
all disability compensation claims for tinnitus filed before June 13, 2003, where a disability rating
greater than 10% is sought or where a claim for service connection for tinnitus was filed prior to June
10, 1999, and was denied on the basis that the veteran's tinnitus was not persistent.
The petitioners assert that, despite the opportunity to do so, the Secretary did not appeal the
Court's decision on any of their claims to the U.S. Court of Appeals for the Federal Circuit, and the
mandate of the Court entered as to each. The petitioners assert that by staying proceedings at the
Board on remand from the Court, the Secretary is refusing to adjudicate the remanded claims of the
petitioners and thereby resisting the lawful orders of the Court. In addition to arguing that the
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Smith was reversed after the Court entered its mandate in the matters underlying this petition. See 451 F.3d
1344 (Fed. Cir. 2006).
petitioners have an indisputable right to a writ of mandamus, that they lack alternative means to
obtain relief, and that relief is warranted, the petitioners also argue that the "Secretary's and
Chairman's intentional resistance to the Court's lawful orders evidences contempt and should be
punished," and they further seek a fine of $10,000 per day commencing on the seventh day after the
Court issues the writ until the stays are lifted and, thereafter, on the seventh day after the stays are
lifted until the Board adjudicates the petitioners' claims in accordance with the Court's decisions.
On July 12, 2006, the Secretary filed a notice of supplemental authority and attached thereto
a July 12, 2006, memorandum of the Secretary that rescinds his April 22, 2005, memorandum
directing the Board to stay action on dual-rating bilateral tinnitus cases pending the outcome of the
Secretary's appeal in Smith. The July 2006 memorandum also directs the Board to adjudicate the
previously stayed claims.
Inasmuch as the Secretary has rescinded his April 2005 memorandum and has directed the
Board to resume adjudication of the previously stayed cases, which include those of the petitioners,
this petition has become moot, and it will be dismissed. See Thomas v. Brown, 9 Vet.App. 269, 270
(1996); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (dismissing portion of petition seeking
mandamus relief because controversy surrounding petition was moot); see also Ramsey v. Nicholson,
___ Vet.App. ___, ___, No. 06-1366, slip op. at 1-2, 2006 WL 2136210, at *1-2 (Aug. 2, 2006)
(dismissing petition for extraordinary relief in the nature of a writ of mandamus because the relief
sought by the petition was granted by the Secretary's rescission of the stay order).
Upon consideration of the foregoing, it is
ORDERED that the petition for extraordinary relief in the nature of a writ of mandamus is
DISMISSED as moot.
DATED: August 16, 2006 PER CURIAM.
KASOLD, Judge, concurring: I fully concur in the dismissal of this petition. I write
separately to add that the Secretary and the Board nevertheless should be cautioned that it is not
proper to stay the processing of claims in which the lawful judgment of the Court reversing the
Board's decision has been entered, no appeal has been taken, and the mandate of the Court has been
entered. See Winslow v. Brown, 8 Vet.App. 469, 472 (1996) ("A lower tribunal, 'upon receiving the
mandate of an appellate court, may not alter, amend, or examine the mandate, or give any further
relief or review, but must enter an order in strict compliance with the mandate . . . .'" (quoting
Piambino v. Bailey, 757 F.2d 1112, 1119-20 (11th Cir. 1985)); see also Ramsey v. Nicholson,
20 Vet.App. 16, 39 (2006) (holding unlawful Secretary's and Board's stay "as to the effect of any of
this Court's decisions"). The proper course of action when a party disagrees with a decision of the
Court is to appeal the Court's decision or to move the Court for a stay. Indeed, it is a "basic
proposition that all orders and judgments of courts must be complied with promptly. If a person to
whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a
stay, he must comply promptly with the order pending appeal. Persons who make private
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determinations of the law and refuse to obey an order generally risk criminal contempt even if the
order is ultimately ruled incorrect." Maness v. Meyers, 419 U.S. 449, 459 (1975); see also 38 U.S.C.
§ 7265(a)(3) (granting Court power to punish contempt "by fine or imprisonment"); Moore v.
Derwinski, 2 Vet.App. 67, 68 (1992) (ordering Secretary to show cause why he should not be held
in contempt for failure to comply with the mandate of the Court).
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