Wednesday, January 31, 2007

VA Granted Stay on Blue Water Claims

On Friday, January 26th, 2007, the Department of Veterans Affairs was granted a stay it sought on January 16th for relief from the writ of mandamus issued January 9th in Ribaudo v. Nicholson. Ribaudo sought to force the VA to comply with the court decision in Haas v Nicholson overturning the VA policy to exclude Blue Water Navy vets from receiving presumptive eligibility under Agent Orange enabling legislation (despite the language in the original legislation!). Subsequent to the Haas decision, the Secretary of Veterans Affairs overstepped his legal authority and ordered his staff not to process any claims under the Haas ruling; hence the Ribaudo writ of mandamus.

Now the Court of Appeals for Veterans Claims (CAVC) has granted a stay on the processing of claims under the Haas ruling, reversing the Ribaudo ruling. In other words, Blue Water Navy claims are on hold.

The effect on this may be greater than one thinks. The stay is issued pending the outcome of an appeal filed by the Secretary of Veterans Affairs. The additional worrisome part of this is that any claims currently in the queue for processing will go on hold, with processing stopped completely. Veterans will be allowed to add to their claims, and to inquire after them, but the staff of the VA will not be taking any other action on their claims.

Meanwhile, thousands of claims are being processed that are not affected by the stay. More claims are being added that are not affected by the stay. Once the stay is lifted – presumably when the Haas decision is upheld – then processing will pick up again, and who knows how many old and new claims will have moved ahead of the Blue Water claims on the VA's queue. The court, in Haas and again in Ribaudo, ordered that Blue Water claims not be advanced but that they should be processed in the regular order.

We can only hope that at the point when Haas is upheld, the Blue Water claims will be expedited.

And Haas will be upheld. Our prediction is this: Nicholson will argue that the VA does not have enough staff to process all the Blue Water claims (a facetious and dishonest argument to begin with…) and that there is not enough money in the budget to pay the Blue Water Navy claims. We predict the court will uphold Haas as being a correct interpretation of the law, and that the VA’s claims of insufficient staff and insufficient funding does not alter the law as written, nor as interpreted by the CAVC, and therefore, the VA’s remedy is with Congress, not with the courts.

In other words, whatever court hears the VA’s appeals will throw it out, [and also lift the stay recently granted, and order the immediate processing of all claims affected by the Haas ruling].

Let’s pray the court sees through this obfuscation, and malfeasance on the part of the Secretary of Veteran’s Affairs. Lack of funding and lack of staff are not matters for the courts!


"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

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