Sumner v. Principi
14 Vet. App. 309
Vet. App.
2001
Check Treatment
Docket

W. T. SUMNER, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 99-368.

United States Court of Appeals for Veterans Claims.

April 3, 2001.

15 Vet. App. 309

Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.

and then “require” the Secretary to adjudicate the claim by that date. We decline to do so and will explain why. This Court is not part of the Department of Veterans Affairs and its administrative machinery. We are not privy to the case loads, the number of remands taking precedence over this case, and the relative priorities established at the BVA or the regional offices. Nor do we know whether such an order might well displace other, perhaps even more deserving, cases. We do know that there have been an extraordinary number of remands by this Court and the Federal Circuit because of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), which, no doubt, greatly exacerbates the administrative problems faced by the Department, which by law is obligated to give each and every one of those remanded claims “expeditious treatment” pursuant to the Veteran’s Benefit Improvement Act, Pub.L. No. 103-446 § 307, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note). We could ask for such information, but such an intrusive order would likely cause even more delay to many other cases as the Department diverted its manpower in an attempt to compile such extensive information. To impose an arbitrary date without the slightest clue as to whether such a date was either reasonable or appropriate would be wrong. It would be like slicing meat with a cleaver. Furthermore, as noted above, this case is going to require further development of the facts, both in terms of the original remand, which we will reinstate with the exception of the Section 1154 language, and the required factual development of the Section 1154 issue. How long this will take, as it will likely involve the assistance of the Department of Defense and the cooperation of the appellant, is pure guesswork.

Moreover, we note that while this case has been “in contest” for seven years, much of that time it has been in appellate status before this Court and the Federal Circuit. Most of the delays before this Court were due to requests for delay by the appellant. Our examination of the record leads us to conclude that, under the circumstances, the Secretary has not been laggard in this case, certainly no more so than this Court or the Federal Circuit. We do urge the Secretary to move this case with all the energy and dispatch he can, consistent, of course, with a full and fair development of the facts. We also express our confidence that the appellant will fully cooperate in the development of the facts.

Upon consideration of the foregoing, it is

ORDERED that the appellant’s motion for an immediate award of benefits is denied. It is further

ORDERED that the decision of the Board is VACATED and the matter REMANDED for action consistent with this Court’s August 1999 memorandum decision, except as noted in this order, and the Federal Circuit opinion.

W. T. SUMNER, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 99-368.

United States Court of Appeals for Veterans Claims.

ORDER

PER CURIAM:

On August 9, 2000, the Court, by a single-judge order, dismissed, for lack of jurisdiction, the appellant’s application for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). On September 29, 2000, a panel denied the appellant’s motion for a panel decision and denied, as premature, his motion for a full Court decision. On October 17, 2000, the appellant filed a motion for panel reconsideration or, in the alternative, for a full Court decision.

Upon consideration of the appellant’s motion for reconsideration, it is by the panel

ORDERED that the motion for reconsideration by the panel is DENIED.

Upon consideration of the appellant’s renewed motion for a full Court decision, because the resolution of , cert. granted, (mem.), argued, , may affect the disposition of this appeal, it is by the full Court

ORDERED that the appellant’s motion for a full Court decision is held in abeyance pending further order of the Court. It is further

ORDERED that, within 30 days after the U.S. Supreme Court’s disposition of , the appellant file and serve a legal memorandum addressing the resolution of that proceeding as it pertains to the appellant’s EAJA application. It is further

ORDERED that the Secretary file and serve a legal memorandum within 30 days after service of the appellant’s legal memorandum.