Erspamer v. Derwinski

1 Vet. App. 3, 1990 U.S. Vet. App. LEXIS 1, 1990 WL 303127
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 23, 1990
DocketNo. 89-14
StatusPublished
Cited by97 cases

This text of 1 Vet. App. 3 (Erspamer v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erspamer v. Derwinski, 1 Vet. App. 3, 1990 U.S. Vet. App. LEXIS 1, 1990 WL 303127 (Cal. 1990).

Opinion

Opinion for the court filed by Associate Judge FARLEY.

FARLEY, Associate Judge:

As the decade of the 1970’s was ending, Ernest G. Erspamer sought disability compensation from the Veterans Administration (VA), claiming that the leukemia he was suffering from was service-connected. Now, as the decade of the 1990’s begins, [5]*5Mr. Erspamer’s claim and that of his widow, petitioner herein, have yet to be resolved by the Department of Veterans Affairs (DVA), the successor to the VA. Urging that this delay of over ten years has been unreasonable, petitioner asks that this court compel action on the claims by exercising jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a), and issuing an extraordinary writ to the appropriate official or officials of the DVA.

In response, the DVA takes the position that this court lacks the jurisdiction necessary to issue the extraordinary relief requested by petitioner. We disagree. For the reasons set forth below, we hold that this court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a), to entertain petitioner’s request. We further hold that the facts and circumstances presented by petitioner, and not disputed by respondent, present the type of situation which would warrant the granting of extraordinary relief. However, based upon the written and oral representations of counsel for respondent that the situation will soon be resolved, we decline petitioner’s invitation to grant the requested relief at this time but will retain jurisdiction of this case pending future order of the court.

I.

On April 14, 1947, Ernest G. Erspamer filed an initial claim for disability compensation stemming from his exposure to ionizing radiation while serving as hydrographic survey officer on the USS BOWDITCH during Operation Crossroads at the Bikini Atolls from August 1946 through September 1946. The claim was denied by the VA on October 7,1947, with the statement that service connection of the “residuals of Exposure to Radio Activity [sic] as claimed by you was not shown by the evidence of record.” Verified Petition at 3.

Having been diagnosed as suffering from chronic myelogenous leukemia, the claimant reopened his claim for service-connected benefits by a letter to the VA Regional Office in St. Paul, Minnesota, dated June 25, 1979. Additional exposure to ionizing radiation is also claimed to have resulted from February 16, 1963, to March 2, 1963, and from February 29, 1964, to March 13, 1964, at the United States Army Chemical School, Fort McClellan, Alabama. Mr. Erspamer died on December 13, 1980, and shortly thereafter, petitioner herself submitted a claim for service-connected death benefits and continued to pursue her husband’s original claim for accrued disability benefits. The St. Paul Regional Office denied the claims on May 19,1981. On June 12, 1981, petitioner filed a Notice of Disagreement and subsequently perfected her appeal to the Board of Veterans Appeals (BVA).

Petitioner’s first appeal was heard by a traveling section of the BVA in San Francisco, California, on February 26,1982. On August 29, 1982, the BVA denied the appeal. On April 27, 1983, petitioner moved for reconsideration of the claim. On March 1, 1984, a traveling BVA section heard petitioner’s motion for reconsideration as well as her alternative request to reopen the claim due to new and material evidence. On November 15, 1984, the BVA remanded petitioner’s claim to the Regional Office in San Francisco, California, with instructions that all available evidence of exposure be gathered and that an independent expert conduct a dose reconstruction of the radiation to which the veteran was exposed.

On September 6, 1986, without having arranged for the mandated independent dose reconstruction or gathered all of the requested evidence, the Regional Office issued a supplemental statement of the case. On October 26, 1986, the petitioner’s claim was resubmitted to the BVA.

On April 29, 1987, the BVA issued the second remand order and again directed that the Regional Office hire an independent expert to reconstruct the dose of ionizing radiation to which the veteran was exposed. In addition, the second remand order prescribed specific action to be taken with respect to the gathering of the records of the veteran’s exposure at Fort McClellan and how this information should be processed in the VA. The BVA specifically stated that “the case should be forwarded to the Chief Benefits Director for [6]*6referral to an independent expert, selected by the Director of the National Institutes of Health....” BVA Decision April 29, 1987, at 7 (Exhibit B of Verified Petition). Upon completion of the independent review, “the Chief Benefits Director should review the case.... The case should then be reconsidered by personnel of the [Regional Office].” Id. at 8. Noting that petitioner’s claim had been pending “for such a prolonged period of time,” the BVA’s second remand order requested that the steps be taken as “expeditiously as possible” and it further directed that petitioner be advised of each development as it occurs. Id. at 5.

Almost three years have passed since the second remand by the BVA. Petitioner has not been advised of any progress, despite over thirty letters to the VA requesting action. On December 11, 1989, petitioner sought a writ from this court directing compliance with the second BVA remand within sixty days, ordering that the DVA pay a reasonable fee to an independent expert, prohibiting the DVA from preventing the independent expert from contacting petitioner, and an award of attorneys’ fees and costs. The case was fully briefed and oral argument, the first before this court, was held on February 7, 1990.

II.

The threshold question for this court to determine is whether it has jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a), to grant the extraordinary relief requested by petitioner. The All Writs Act provides that

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

28 U.S.C. § 1651(a).

The United States Court of Veterans Appeals is a “court[] established by Act of Congress.” Section 4051 of the Veterans Judicial Review Act of 1988 (VJRA), Pub.L. 100-687, Title III, Sec. 301, 102 Stat. 4113, provides that “[t]here is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Court of Veterans Appeals.” Article I courts are empowered to exercise jurisdiction under the All Writs Act. See, e.g., Noyd v. Bond, 395 U.S. 683, 695 n. 7, 89 S.Ct. 1876, 1883, n. 7, 23 L.Ed.2d 631 (1969) (United States Court of Military Appeals); United States v. Frischholz, 16 C.M.A. 150, 36 C.M.R. 306 (1966) (United States Court of Military Appeals); Alberta Gas Chemicals, Inc. v. United States, 496 F.Supp. 1332, 1335-36 (Cust.Ct.1980) (United States Customs Court, which, in 1980, became the United States Court of International Trade); Yeager v.

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Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 3, 1990 U.S. Vet. App. LEXIS 1, 1990 WL 303127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erspamer-v-derwinski-cavc-1990.