UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

No. 14-269

G E N E S. G R O V E S , P E T I T I O N E R ,

V

.

R O B E R T A. M C D O N A L D , S E C R E T A R Y O F V E T E R A N S A F F A I R S , R E S P O N D E N T

.

Be fore KASOL D, Chief Judge , and MOORMAN a nd L ANCE, Judges

.

O R D E R

I n the context of the instant January 24, 2014, petition for extraordinary relief in the nature of a writ of mandamus, the question befor e the Court conce rns the petitioner' s reque st for sanctions based on t h e S ec retary ' s failure to corr ect an err or of the Boa rd of Veter ans' Appea ls (B oard) in char acte rizing this Court's Marc h 2012 remand decision as an affirmance i n i t s d atabase, despite

numerous letters from the p et i tioner raising the err or. This ultimately resulted in the Secre tary ' s failure to ex p editiously handle the Court's rema nd order as require d by 38 U.S.C. §§ 5109B and 7112. During the pendenc y o f t h e i n s t ant petition, the other relief reque sted by the petitioner–complianc e with this Court's Marc h 2012 rema nd decision conce rning VA' s reduc tion of h i s disability rating for post-traumatic stress disorder (PTSD) from 100% to noncompensa b l e– beca me moot when, on May 6, 2014, the Boa rd issued a decision that deter mined that the reduc tion

was improper and order ed restora tion of the 100% rating for PTSD, eff ective May 1, 1997 (Secr etar y ' s May 7, 2014, Notice)

. See Mokal v. Derwinski

, 1 Vet.App. 12, 15 (1990) (adopting the

case -or- controve rsy constraints imposed by Article I I I of the Constit ution and dismiss ing a portion of a petition seeking mandamus relief beca use the controve rsy surrounding the petition was moot).

T h e Court holds that, under the unique and particula rized circ umstances of this case , t h e Secre tary ' s failure to provide a minimum amount of scrutiny to any one of multipl e letters from Mr. Grove s following this Court's Marc h 2012 rema nd order s h o wed g ross neg lige nce and lack of

rea sonable diligenc e in ha ndling this Court' s Marc h 2012 rema nd order

. Had a rea sonable inquiry been made by VA during the approximate two-y ear period, the Boa rd' s mischara cter ization of this C o urt' s Marc h 2012 order as an aff irmance would have been corr ecte d. Be cause the standard fo r holding a party in ci v i l co n t em pt established by this Court has been met, the Court will hold the Secre tary in civil co n t em p t

. See Harve y v. Shinseki

, 24 Vet.App. 284, 287 (2011); Pousson v. Shinseki

, 22 Vet.App. 432, 437 (2009). To ensur e the Sec reta ry ' s diligent compliance with futurerema

nds from this Cou rt
, the Court will order the Secre tary to pay sanctions in the form of

rea sonable e x penses a ssociated with the litigation of this matter.

I. LACK OF AG ENCY ACTION ON REMAN D

I n M ar ch 2 0 1 2, the Court issued a decision based on the petitioner' s appea l from a September 17, 2009, Board d ecision that deter mined that a VA reg ional office (RO) proper ly reduc ed the pe titioner' s disability rating for PTSD. The Court held a s follows:

I n any view of the matter, this rec ord does not allow the Court to proper ly revie w the Boa rd' s implied fi n d i n g t hat the appellant lacke d g ood cause to repor t to the schedule d medical examinations for PTSD. T h erefore

, the Court is unable to
proper ly assess the Boa

rd' s finding s with respe ct t o the reduction in the appellant's disability rating and with respe ct to its possible restora tion. Acc ordingly, the Court will set aside the Board's determinations on thes e matters and remand them for readjudication after further efforts t o reach some reasonable accom modation with

respec t to the medical ex amination.

Grove s v. Shinseki

, No. 09-3611, 2012 WL 686669, at *6 (Ve t. App. Mar. 5, 2012) (empha sis ad ded). Mandate issued on May 30, 2012. Although the rema nd order did not exp re s s l y o rd er expedited trea tment, the statutory duty nevert h el es s governe d the matter, and the Secre tary was there afte r require d to proce ss the Court's rema nd order in an expedi t ious manner as require d by 38 U.S.C. §§ 5109B and 7112.

I n light of the passag e of more than 19 months since mandate issued, the Court i s s u ed a Fe bruar y 26, 2014, order direc ting the Secre tary to respond to the petition. I n response , the Secre tary

asser ts that when mandate had issued in May 2012, "pe rsonnel at the Boa rd mis-entere d the Court's decision with reg ard to the underly ing appea l as an aff irmance in the Veter ans Appea ls Control and
L o cator Sy stem (VACOL S) (the Boa rd' s computerized trac king sy stem)." Mar. 28, 2014, Se c r e ta r y ' s Response at 3, Ex hibit A (De clar ation of Br uce P. Gipe, Direc tor of the Offic e of Manag ement, Planning, and Analy sis of the Boa rd)

. T h e S ec retary explained that "sta ff at the Boa rd may have confuse d the underly ing appea l with a differ ent appea l perta ining to Petitioner [(No. 06-1252)], and that on or around May 2012, the Bo ar d i n p u t incorre ct data that the Court had aff irmed the underly ing appea l." Id. at 5. The Secre tary noted that, at about the same time that the Court issued mandate in the underly ing appea l, the Court ha d issued mandate on May 23, 2012, in No. 06-1252

as to a Court decision dated in November 2009 aff irming a 2005 Boa

rd decision as to a mat t er

conce rning clea

r and unmistakable err or in a 1972 RO decision and vacating a 2005 Boa rd decision

conce rning entitlement to vocational re habilitation services. Id ., Ex hibit A.

The S ecr etar

y acknow ledg ed that, other than the mis-entry of the Court's Marc h 2012 decision in the Boa

rd' s databa se, n o ac t i o n wa s taken by VA on the rema nded claim during the period betwee n the Court's Marc h 2012 rema nd order and shortly befor e the Court's Fe bruar y 2014 order

. Id

., Ex hibit A (De clar ation) at para

. 4-5 (stating that no action was taken on the Court rema nd

2when mandate issued in May 2012 and noting that action then occur red on Fe bruar

y 24, 2014, when "the Boa rd mailed the appellant a ' 90 day ' notice letter" and informed him that "the Boa rd had

rec eived his claims file t o proce ss the C ourt' s Marc h 5, 2012 Memorandum De cision.") ; see id . at 8 (noting that the Boa

rd "be came awa

re" of its mis-entry of the Court's rema nd as an aff

irmance in
Fe bruar y 2014).

I n an April 28, 2014, order

, the Court expres s ed i t s dissatisfaction with the Secre tary ' s response , espec ially

with the Secre tary ' s failure to e x plain (1) whether the claims file contains any of the eig ht letters that the petitioner asser ts he sent VA from Aug ust 2012 to October 2013 in which he reque sted VA action on the Court rema nd; (2) whether VA rec eived any of those eig ht letters; and if so (3) what VA did afte r it rec eived those letters. The Court noted that counsel for the Secre tary stated simply that she was "una ble to deter

mine what corr espondenc e may have been rec eived by the Ag ency " and provided no explanation as to any eff orts underta ken to deter

mine whether the ag ency

rec eived the le tters. Resp. at 5.

I n its April 2014 order

, the Court direc t ed t h e S ec reta ry to file a supplemental response addre ssing the matters dis cussed in its order an d to show cause why sanctions are not in order for the failure to proce ss the Court's Marc h 2012 rema nd order in an expeditious manner , which includes taking any nece ssary action in response to status inquiries from the petitioner reg arding his rema nded claim. See Harve

y , 24 Vet.App. at 287; Pousson

, 22 Vet.App. at 437; see also N a t'l Org. of
Veterans Advoc ates, Inc. v. Sec'y of Veterans Affairs

, 710 F.3d 1328 (F ed. Cir. 2013). Specifica lly

, the Court require d information as to any rele vant reg ular proce ss used by the Secre tary when a letter, such as one asser

tedly sent by the petitioner, is rec eived by the ag ency conce rning a claim that was

rema n d ed by this Court, including rec ording the corr espondenc e in any computer databa se and phy sically

transfe rring the document f or appr opriate a ction and re sponse to the veter an.

The Court noted that any one of the eig ht letters from the petitioner contained sufficie nt information t hat, h ad a rea sonable inqui ry been made by VA, the asser ted m is-entry by the Board would and should have been c orre cted. The Court note s that copies of the letters wer e attache d to the petition and wer e dated Aug ust 19, 2012; September 15, 2012; October 20, 2012; November 22, 2012; Dec ember 21, 2012; May 10, 2013; J une 8, 201 3 ; and October 24, 2013. The letters specific ally identified the Gene ral Counsel's Professional Staff Group VI I attorney involved in the underly ing appea l in the litigation befor e this Court, the date of this Court's decision, and the docket number of the underly ing appea l (i.e., No. 09- 3611), and spe cifica lly noted that this Court had set aside the Boa

rd' s deter mina tion with respe ct to the propriety of the rating reduc tion for PTSD. Petition, Ex hibits. The Court also noted that the petitioner had provided a cer t ificate of mailing dated Aug ust 20, 2012, to VA, Offic e of G ener al Counsel. Mar. 31, 2014, Petitioner' s Response.

On May 20, 2014, the Secre tary filed a response in which he attache d decla rations from VA officia ls. The Secre tary acknow ledg es that VA rec eived four of the letters identified as being sent by the petitioner conce rning VA' s reduc tion of his 100% PTSD rat i n g an d t his Court's Marc h 5, 2 012, decision that set aside the 2009 Boa rd decision, that is, letters dated November 2 2

, 2 0 1 2 ; Dec ember 21, 2012; J une 8, 2013; and October 24, 2013. May 20, 2 0 14, Secre tary ' s Response,

3Ex hibits at 61-62 (De clar ation of RO officia l ac k n o wl edging VA' s rec eipt of the four letters and

noting copies of same in Mr. Grove s' s "te mporary folder" at the Waco, RO). The Secre tary states 1
that these letters wer e found either in the petitioner' s claims file or in his "te mporary " folder and that "pr oblems VA had in ha

ndling the ma il" re sulted in the Boa rd' s failure to be aler

ted to the nee d to

corr ect the mis-entry into VACOL S by the Boa rd' s litigation support staff conce rning the nature of the Court's holding in its Marc h 2012 decision. May 20, 2014, Secre tary ' s Response at 3, 10. The Secre tary descr ibed the proce dures in place for h andling the mail during the rele vant time–Aug ust 19, 2012 through O ctober 24, 2013.

The decla ration of Maria Gemma Button, Deputy Ex ecutive Secre tary for VA, Offic e of the Secre tary
, Offic e of the Secre tariat, stated that, during the beg inning of 2012 until ear ly Marc h 2014, beca use of ag ency b acklog of Whit e House mail, miscellaneous or "c ase mail" addre ssed to the Secre tary was to be enter ed direc tly into VA' s corr espondenc e trac king sy stem known as VA I ntrane t Quorum (VAI Q) by the Veter ans Be nefit Ad m i nistration (VB A). I f there had not been a Whit e House backlog

, the Offic e of Admini s t ra t ion (OA) would have rec eived the case mail from the Offic e of the Ex ecutive Secre tariat (ExecSec) and OA would have enter ed the letter into VAI Q and assig ned it for a response to the appropr iate Administration or Staff office (e.g

., VB A), and "[o]nce complete, the rec ord is closed in VAI Q." Be cause of the backlog

, the altere d proce dure require d
VB A to enter the mail into VAI Q. As noted by Ms. Button, "V BA did not enter the mail into VAI Q, but sent it direc tly to the VB A re g ional office for a ppropriate action." Ex hibit E at 2. Ms. Button further stated that, following a meeting ear lier this y ear betwee n the Ex ecSec and OA leade rship, "O A has since decide d to input the miscellaneous mail into VAI Q so the Depa rtment could confirm its rec eipt and handling

. The Depa rtment should no longe r have an issue of not being able to acc ount for mail re ceive d and not proc essed if e ntere d and tra cked a ppropriate ly

in VAI Q." Id

.

Acc ording to Br ian Curry

, Assistant Service Center Manag er at the Waco RO, the RO does

not have "a written or elec tronic databa se of mail rec eived." May 20, 2014, Secre tary ' s Response, Ex hibit at 61. The RO officia l stated that copies of the three letters dated November 22, 2012; J une 8, 2013; and October 24, 2013, which all are addre ssed to the "Sec reta ry of VA," wer e prese nt in the temporar y folder at t h e W aco RO. I n addition, the J une and October letters "w ere revie wed and place d in the claims folder which was in the possession of the Waco Reg ional Offic e at the time of

rec eipt. The previously cited mail of November 22, 2012, was forwa rded to the Boa

rd of Veter ans' Appea ls as they wer e in possession of the claims folder at that time." Id

. The RO officia l stated that

a fourth letter, dated Dec ember 21, 2012, was also located in the petitioner' s temporar y folder and, unlike the November 2012 letter, had not been forwa rded to the Boa

rd, althoug h it should have been beca use the Boa

rd was then in possession of the claims folder. Id

. at 62. Appar ently

, the Boa rd was in possession of the cla i m s fo l d er from Marc h 2012 until J anuar y 17, 2013, and the RO had it there afte r. Exhibi t A at 8.

A l t h o u g h t h e R O o f

f i c i a l n o t e d t h a t a l l f

o u r l e t t e r s w e r e f

o u n d i n M r

. G r o v e s 's t e m p o r a r y f o l d e r a t t h e W a c o 1

R O

, t h e S e c r e t a r y 's r e s p o n s e s t a t e s t h a t t h r e e l e t t e r s w e r e l o c a t e d

, i n e x p l i c a b l y e x c l u d i n g t h e D e c e m b e r 2 1

, 2 0 1 2

, l e t t e r

. M a y 2 0

, 2 0 1 4

, S e c r e t a r y 's R e s p o n s e a t 4

- 5

.

4Acc ording to Mr. Gipe, Principal Deputy Vice Chairm an and Direc tor of the Offic e of

Manag ement, P lanning

, and Analy sis of t he Board, alt houg h the November 2012, J une 2013, and October 2013 letters are in the claims folder, they "do not bear any phy sical demar cation indicating

rec eipt by the Bo ar d

. " Ex hibit A at 8-9. He further noted that none of these letters is ref lected in VACOL S. Id . at 8.

II. CIVIL CONTEMPT

As this Court stated in Harve y , "'t h i s C o u rt p o s s es s es t h e i n h erent as well as the statutory authority to impose sanctions.' " Harve y , 24 Vet.App. at 287 (quoting Pousson

, 22 Vet.App. at 436). "[A]s a matter of law, the Court may impose a ' fine' or ' imprisonment' wher e a party is in contempt of its authority as a result of ' disobedience or resistanc e to its l aw fu l writ, proce ss, order

, rule, decr ees or

command.' " Id . (quoting 38 U.S.C. § 7265).

This Court has established that it may hold a party in civil contempt wher e there exis ts: (1) a rule or order that is clea

r and unambig uous; (2) clea r and convincing proof of non-complianc e with that rule or order ; an d (3 ) a s h o wi ng that the contemnor has not been rea sonably diligent and

ener g etic in attempting to acc omplish his duty under the rule or order

. Harve y , 24 Vet.App. at 287; Pousson

, 22 Vet.App. at 437. "F urthermor e, althoug h the Court must deter mine that the conduct at issue meet s t h e ab o v e elements, bad faith or willfulness is not require d." Harve y , 24 Vet.App. at 287. "Ra ther, a party can be found in civil contempt wher e his failure to fully comply with a Court rule or order is the result of ' g ross neg lige nce and a g ross lack of diligenc e.' " Id

. (quoting Pousson

, 22 Vet.App. a t 437).

I n this case, the Sec reta

ry ' s failure to e x peditiously handle the Court' s Marc h 2012 rema nd order as require d by 38 U.S.C. §§ 5109B and 7112 meets all three elements nece ssary for the Court

to hold him in civil contempt. The Secre tary does not dispute that there was a "c lear and unambig uous order from this Court" and the Secre tary has a duty to expe d i t e proce eding s in

rema nded case s. May 20, 2014, Secre tary ' s response at 10. Reg arding the second element that there be clea r and convincing evidenc e of noncompliance with the rule or order

, the Secre tary arg ues that the fac ts "militate ag ainst a findi n g" t h at this element has been met. Id

. at 11. Specifica lly

, he contends that the petiti o n er 's cl ai m was pending befor e the Boa rd since this Court's May 2012 mandate

due to the VACOL S err or descr ibed above, which was not cor re ct ed d u e to the problems VA had in handling the m ai l t h at woul d have aler ted the Boa

rd to that

err or. Howeve r, on May 6, 2014, the Boa rd issued a decision which provides the full

g rant of benef

its reg arding the underlying appea l, which is approximately two y ear s afte r the C o u rt 's Or d er, and which amounts to less than two y ear s of delay (consider ing tha

t a timely adjudication would have taken some months). Id . at 10.

5I n explaining this element, the Court in Harve y stated "the Court's contempt power is meant
to maintain the Court's authority and dignity " and "suc h authority and dignity cannot be maintained wher e the Secre tary flag rantly fails, by either inattention or desig n, to comply with an order from this Court and further fails in his responsibility to expedite the proce ssing of a Court-order ed rema nd."
Ha r ve y , 24 Vet.App. at 288. The Court held that "f ailure by the Secre tary to comply with his obliga tion to proce ss Court rema nds expeditious ly

, under unique circ umstances simil ar to those of this case , is the same as noncompliance with the rema nd order itself, even if the Secre tary eventua lly complies with the substance of the orde r." Id

.

Her e, the delay wa s excessive in light of the fac t that the delay was cause d solely by the Secre tary ' s inattention to comply with this Court's rema nd order

. The inat t en t i o n the Secre tary aff orded the Court's r emand or der sa ps public confidenc e in the Court and the fair adjudication of

veter ans benef

its and impugns the Court's dignity

. I t is cl ea r that, had the petitioner not filed his petition with the Court, the Secre tary woul d not have proce ssed the Court's Marc h 2012 rema nd order

. The Boa

rd' s initial mis-entry of the Court's Marc h 2012 rema nd order as an aff

irmance is

arg uably understanda

ble. Howeve r, the Secre tary ' s subsequent multipl e failure s to g ive attention to the Court's order

, when mandate issued in May 2012, by conducting verific ation as to the Court's order to which the mandate refe rre d an d t h er ea ft er to revie w t he C ourt' s Marc h 2012 order at any time after rec eiving any

of the pe titioner' s later letter s, is not understandable. 2

The delay in this case was not the result of an overbur dened sy stem; rathe r, it was a disreg ard for the importance of compliance with a Court order

. I t is undisputed that the Secre tary had rec eived four of the petitioner' s letters. The Secre tary disreg arde d the importance of compliance with a Court

rema nd whe n i t re ce i ved these letters and failed to investiga te the petitioner' s asser tions in those letters–that the Court had set aside, not aff irmed, the Boa

rd' s decision. As in Harve y , "[h]ad the Secre tary ' s staff diligently revie wed the claims file," they would have discovere d that the Court had

set aside the Boa

rd decision and rema

nded the claim, rathe r than aff irmed the Boa

rd decision. 24 Vet.App. at 289. Given the issuanc e of ma ndate a nd the subsequent numer ous letters fr om the petitioner aler

ting VA as to the Court's Marc h 2012 decision, "the re is simply no defe nsible rea son

C o n t r a r y t o t h e s t a t e m e n t o f o u r d i s s e n t i n g c o l l e a g u e , t h i s c a s e d o e s n o t i n v o l v e t h e s i m p l e m i s f i l i n g o f t h i s 2

C o u r t 's M a r c h 2 0 1 2 r e m a n d o r d e r a s a n a f f i r m a n c e

. R a t h e r , i t i n v o l v e s t h e s u b s e q u e n t i n a c t i o n b y t h e S e c r e t a r y a f t e r

r e c e i v i n g m u l t i p l e l e t t e r s f r o m M r

. G r o v e s t h a t c o n t a i n e d s u f f i c i e n t i n f o r m a t i o n t h a t
, h a d a r e a s o n a b l e i n q u i r y b e e n m a d e b y V A

, t h e a s s e r t e d m i s

- e n t r y b y t h e B o a r d w o u l d h a v e b e e n c o r r e c t e d

. T h e f o u r l e t t e r s t o V A t h a t t h e S e c r e t a r y

a c k n o w l e d g e s h a v i n g r e c e i v e d s p e c i f i c a l l y i d e n t i f

i e d t h e d a t e o f t h i s C o u r t 's d e c i s i o n a n d t h e d o c k e t n u m b e r o f t h e

u n d e r l y i n g a p p e a l ( i

. e

. , N o

. 0 9

- 3 6 1 1 )

, a n d s p e c i f i c a l l y n o t e d t h a t t h i s C o u r t h a d s e t a s i d e t h e B o a r d 's d e t e r m i n a t i o n w i t h

r e s p e c t t o t h e p r o p r i e t y o f t h e r a t i n g r e d u c t i o n f o r P T S D

. T h e d i s s e n t 's v i e w e s s e n t i a l l y a l l o w s t h e S e c r e t a r y t o i g n o r e l e t t e r s f r o m a c l a i m a n t w h o s p e c i f i c a l l y i n f

o r m s V A o f a p a r t i c u l a r C o u r t r e m a n d o r d e r

. T h i s c a s e h i g h l i g h t s t h e d e t r i m e n t a l c o n s e q u e n c e s f r o m s u c h i n a c t i o n

. T h i s c a s e i n v o l v e s n o t o n l y t h e S e c r e t a r y 's f a i l u r e t o r e v i e w a n y o f t h o s e l e t t e r s b u t t h e S e c r e t a r y 's c o n s e q u e n t f a i l u r e t o e n s u r e t h a t t h e C o u r t 's M a r c h 2 0 1 2 o r d e r w a s o n t h e " r e m a n d " t r a c k f o r

a g e n c y p r o c e s s i n g

. T h e S e c r e t a r y i s r e q u i r e d t o e f f e c t u a t e t h i s C o u r t 's r e m a n d o r d e r s i m m e d i a t e l y u p o n i s s u a n c e o f

m a n d a t e

. T h e S e c r e t a r y 's o b l i g a t i o n i s n o t t o e f f e c t u a t e t h o s e o r d e r s o n l y w h e n a c l a i m a n t w a i t s l o n g e n o u g h a n d t h e n
p e t i t i o n s t h i s C o u r t f

o r r e l i e f t o e n f

o r c e t h e o r d e r

. A v e t e r a n

- a p p e l l a n t w h o h a s b e e n g i v e n r e l i e f b y t h i s C o u r t o u g h t n o t

t o h a v e t o c o m e b a c k t o t h i s C o u r t i n a s u b s e q u e n t p e t i t i o n t o s e e k e x e c u t i o n o f t h e s a m e r e l i e f t h i s C o u r t h a s a l r e a d y
g r a n t e d

– a r e m a n d o f h i s c l a i m

.

6that the Court's order

, requiring a [remand, rathe r than an aff irmance ,] require d [2 y ear s] to proce ss." Id

. at 289. I n light of the above, the Court holds that there is clea r and convincing evidenc e that the Secre tary failed to proce ss the Court's Marc h 2012 rema nd order in an expeditious manner as require d by

38 U.S.C. §§ 5109B and 7112.

The Court further holds that the third element–lac k of rea sonable diligenc e–is met beca use the Secre t ar y "w as g rossly neg lige nt and lacking in diligenc e while proce ssing the petitioner' s

rema nd." Ha rvey , 24 Vet.App. at 290. As in Harve y , "the proce ssing of the petitioner' s rema nd 3
afte r the issuanc e of ma

ndate wa s a par ade of

administrative er

rors." Id. These e rror s include the
Boa rd' s mischara cter ization of t h i s C o u rt ' s rema nd as an aff

irmance when it input the cruc ial inform at i o n into VACOL S, the Board' s failure to verify to what C ourt order the m andate ref err ed when the Boa

rd' s employ ee enter ed the date of t h e mandate in its sy stem, the failure of the Secre tary ' s staff to follow its proce dures reg arding the rec eipt and entry of mail in its sy stem on not

one but four separ ate occa sions, and the failure of the Secre tary ' s staff at the RO or Boa rd to rea d the Court's Marc h 2012 decision on four o c c a s ions upon rec eipt of the petitioner' s letters that specific ally raised the err or and note d the Court' s action in setting a side the B oard de cision.

The Cour t h o l d s t h at these err ors amount to an unacc eptable eff ort in the handling of the petitioner' s rema

nd and have resulted in extensive and unwar rante d delay

. See Harve

y , 24 Vet.App.

at 290; see also Pousson

, 22 Vet.App. at 438-39 (finding "a g ross lack of diligenc e" in the Secre tary ' s attempt to comply with the Court Rule that require d the timely filing of the desig nation of the rec ord wher e the Secre tary made a "ba ld asser tion" that an "e x tensive sear ch" had been underta ken for missing claims file and the Secre tary "did not diligently sear ch for the claims file" until shortly befor e a schedule d oral arg ument befor e this Court). Acc ording ly

, the Court holds that the Secre tary failed to ac t in a rea sonably diligent or ener g etic manner with respe ct to this Court's Marc h 2012

rema nd order

. The Secre tary ' s lack of proper diligenc e and respe ct for compliance with the Court's

rema nd order interfe red seriously with the proper and expeditious proce ssing of the petitioner' s case

on rema nd. Although the petitioner has ultimately been awa rded VA benef

its based on the Court's Marc h 2012 rema

nd order –i.e., VA restore d his 100% disability rating for PTSD, eff ective May 1, 1997–the awa

rd is based on the May 6, 2014, Boa rd decision that was issued after the petitioner filed his petition i n this Court.

We know that many veter ans are frustra ted beca use this Court had rema

nded their claims and VA seeming ly has acte d with littl e urg ency

. The Court is awa re that in a number of these case s VA has not acte d afte r letters have been written, by the veter an and his or her counsel, asking for prompt action. Howe ver, e ven ag ainst that unfortunate backdr op, Mr. Grove s' s case is unique. Here , VA

es s entially deposited the veter an' s rema nd in the "de ad letter" box by misidentify ing it as an aff irmance by the Cou rt

. T h u s , t he mere passag e of time would not have improved the veter an' s

T h e C o u r t n o t e s t h e p e t i t i o n e r 's p r o s e s t a t u s d u r i n g t h e a g e n c y p r o c e e d i n g s o n r e m a n d a n d e m p h a s i z e s t h a t 3

i t e x p e c t s t h e S e c r e t a r y t o a c t i n a r e a s o n a b l y d i l i g e n t m a n n e r i n a l l r e m a n d e d m a t t e r s r e g a r d l e s s o f w h e t h e r a c l a i m a n t i s r e p r e s e n t e d o r n o t

.

7situation. He would n o t have been furnished the relief order ed by the Court beca use VA had

err oneously deter

mined that he was due no relief. Ha d ev en o n e of his letters prompted any meaning ful inquiry from VA, the err or would have been discovere d. Howeve r, the callous disreg ard for the veter an' s asser

tion that this Court had g rante d him relief –had "' set aside' VA' s improper reduc tion of [hi s] 100% PTSD'" –resulted in not just delay ed further action, but rathe r, in no further action at all by

VA despite the Court-order ed re mand. J an. 24, 2014, Petition, Attachme nts. This failure to act is the very definition of unacc eptable conduct compounded by a lack of even minimal

conce rn for

the individual vetera

n and the f

aithful execution of the orde rs of this Court.

This case thus repr esents a drama tic depar ture from the all too fre quently seen delay s in VA

proce ssing. Her e, VA did not mere ly fail to timely proce ss a rema nd. I t not only failed to ide ntify

a Court-order ed rema

nd reg arding the propriety of a reduc tion in rating, but it further failed to question wha t had happened after its inaction was called to its attention. This inaction conjures a vision of a drowning man watche d by a lifeg uard in a near by boat equipped with life prese rver s and

resc ue ropes who decide s to do nothing even though the drowning man is blowing a whistle and firing flare s to call attention to his plight. Charg ed with responsibilities t o both this Court and to
veter ans, VA is far more than a by stander and cannot simply do nothing in the expectation that this Court eventually

will be asked to a ct on mandamus re view.

That is g ross neg lige nce, a nd the Court cannot ig nore it.

Ba sed on t he cir cumstance s here , wher e all three elements have been met, the C ourt holds the Secr etar

y in civil contempt.

III. SANCTIONS

As noted above , the Court has the a uthority "to punish by fine or imprisonment," pursuant

to section § 7265(a)

. 38 U.S.C. § 7265 (a) (3)( "T he Court shall have po we r t o p u n i s h by fine

. . . such contempt of its authority as

. . . disobedience or resistenc e to its lawful writ, proce ss, order

, rule, decr ee, or command." ). I n this reg ard, the Court is cog nizan t o f t he Secre tary ' s repr esenta tions

conce rning planned improvements to V A sy stemic trac king of corr espondenc e. See United States

v. United Mine W

orkers of Am.

, 330 U.S. 258, 304 (1947) (noting t h at t h e contemnor' s intent to

reme dy the situation is rele vant i n gau g ing how sever e a sanction is nece ssary ). Trac king

corr espondenc e, howeve r, does not itself provide an adequate solution to the Secre tary ' s lack of any scrutiny of the numerous piece s of corr espondenc e submitt ed by the petitioner in his attempt to g et his rema nded case on the appropr iate trac k for rea djudic at i o n o n rema nd. See May 20, 2014, Secre tary ' s Resp. at 7 (" The Reg ional Offic e could have p re v en t ed t h e issue by g iving g rea ter scrutiny to the corr espondenc e, but it did not rec og nize the appellate stat u s an d

, fa ced with 4000 piece s of mail per day

, it trea ted the corr espondenc e as evidenc e to g o into the claims file for a reg ular adjudication." ). A minimum amount of scrutiny by any one of the numerous VA employ ees who touched one of the multiple piece s of cor responde nce would have resulted in a deter mination that the case should have been trea ted as a pending case on rema nd from this Court. The Secre tary ' s

8implied asser tion that some scrutiny was g iven to the corr espondenc e is belied by the fac ts attested to in the affidavits that the corre spondence was filed a way

.

T h e C o urt acknow ledg es that its discretion to impose sanctions has limit s; there is n o t unlimit ed judicial power to impose noncompensa tory civil contempt fines. See Int ' l Union, United
Mine W orkers of Am. v. Bagwell

, 512 U.S. 821, 829 (1994). "A contempt fine

. . . is considere d civil and re medial if it either ' coer ce[s] t he def endant into compliance with the court' s order , [or]

.

. . compensa te[s] the complainant for losses sustained.' " Id. (quoting Mine W orkers

, 330 U.S. at 303- 04). For example, compensa tory sanctions must not exceed the actua l damag es incurre d by the party that was wrong ed and must be based on evidenc e of the party ' s actua l loss. See

, e.g. , Elkin v. Fauve r , 969 F.2d 48, 52 ( 3d Cir. 1992).

I n the past, this Court has imposed sanctions ag ainst the Secre tary that co m p ensated the

veter an to the extent rea sonable attorney fee s and costs wer e incurre d in connec tion with the matter. See Harve y , 24 Vet.App. at 291 (direc ting the Secre tary to pay the rea sonable attorney fee s and costs

as sociated with the adjudication of the matter as a sanction "de signe d to ensure rea sonab l e an d

ener g etic eff

orts to comply with the law and order from this Court[ ] and to provide a reme dy for the

unnece ssary eff

ort expended to addre ss the Secre tary ' s lack of diligenc e" ); Pousson

, 22 Vet.App. at 4 3 8 -3 9 (s ame) (noting that the sanction is "de signe d to encour ag e continued diligent compliance with the Court's Rules in this case and future case s")

. Howeve r, "[w]here a fine is not compensa tory
, it is civil only if the contemnor is aff orded an opportunity to purg e." Bagwell

, 512 U.S. at 829. The Supreme Court explained, "[t]hus

, a ' flat, unconditional fine' totaling even as littl e as $50 announce d afte r a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduc e or avoid the fine throug h compliance ." Id

. (quoting Penfield Co. of Cal. v. S E C

, 3 3 0 U. S. 585, 588 (1974)) ; Hicks v. Feiock

, 485 U.S. 624, 633 (1988) (" I f the relief provided is a fine, it is

. . . punitive when it is paid to the court, though a fine that would be pay able to the court is a lso r emedial when the defe ndant can avoid pay ing the fine sim p l y b y p er fo rming the aff irmative act require d by the court' s order .")

.

I t is of the utmost importance that this Court secur e the Secre tary ' s diligent compliance with future rema

nds from this Court. Yet

, t h e Court is mindful that in devising a reme dy ag ainst the Gover nment here

, the Court should take into acc ount the Ag ency ' s i n t er es t s in manag ing its own aff airs and should selec t the least intrusive sanction that the Court d et er m ines will achie ve future compliance

. See Spallone v. United States

, 493 U.S. 265, 276 (1990)) ; Mine W orkers

, 330 U.S. at 304 (" [W ]here the purpose is to make the def en d an t co m p ly

, the court' s discretion is otherwise exercised. I t must then consider the charac ter an d mag nitude of t he harm threa tened by continued contumacy
, and the probable eff ectivene ss of any sug g ested sanction in b ri n gi n g about the result desired." ). Henc e, at this time, the Court will not impose a monetary fine other than the rea sonable

compensa tory costs of the petitioner in litigating this matter. See March v. Brown

, 7 Vet.App. 163, 168-70 (1994) (holding that pro se appellants may rec over rea sonable and n ec essar y expenses i n cu rr ed in litigating their appea l pursuant to the Equal Acc ess to J ustice Act (EAJA), 28 U.S.C. § 2412(d), and awa

rding expenses for photocopy ing, postag e, and transporta tion); s ee also
McD onald v. Nicholson

, 21 Vet.App. 257, 264 (2007) (re quiring s u ff icient detail in itemiz ed

9statement t o permit eff ective r eview of

the applica tion, including the identification of the purpose of t h e ac t i v i ties claimed as rec overa ble under EAJA–that is, an explanation descr ibing why the particula r expenditure was nece ssary to further the appea l). The Court notes t h at the petitioner

proce eds pro se in this petition and his 100% rating was ultimately restore d, eff ective May 1997, and, there fore

, any compensa tory fine is limit ed to the petitioner' s actua l expenses in p ro s ec u t i ng this petition. Acc ording ly

, the Court will allow the petitioner the opportunity to submit an application for the rea sonable and nece ssary expenses in litigating this matter, if any

. Any application submitt ed must be sufficiently

detailed to per

mit effec tive revie w of the a pplication

I n addition, to ensure c ompliance with future remands, the Court will instruct the C lerk to send copies of this order to multipl e VA officia ls as i d enti fied below for immediate, appropr iate action for setting in place safe g uards to preve nt or catc h any misclassification of this Court's order s in VACOL S, to ensure that case s rema nded from this Court are on the appropr iate rema nd trac k, and

to ensure that corr espondenc e is revie wed upon rec eipt and aff orded appropr iate scrutiny to deter mine whether

the case identified i n the corresponde nce is a case on rema

nd from this Court, that is, acknow ledg ed and trea ted by VA as one on rema nd from this Court and is on an appropr iate

trac k for c ompliance with the r emand or der.

Although sanctions are undebata bly war rante d here

, sanctioning the taxpay er i s l es s than satisfy ing

. A s d e mo n s tr a

te d above, the malfeasance of individual actors throug hout the Ag ency –and

not the t axpaye r

–is responsibl e for the parade of err ors t hat ensued following the C ourt' s rema nd, resulting in unnece ssary and avoidable delay

. Perhaps, should such conduct persist in the future, the Court will be forc ed to explore sanctioning individ u al actors whose g ross neg lige nce and lack of diligenc e results in unwar rante d delay s in the proce ssing of this Court's order s. See 38 U.S.C. § 7265(a) ; NLRB v. Blevins Popcorn Co.

, 659 F.2d 1173, 1184 (D.C. Cir. 1981) (noting that a civil contempt action "i s a reme dial sanction used to obtain compliance with a court order or to
compensa te for damag e sustained as the re s u l t of noncompliance ") ; cf

. Nat' l Org. of Veterans Advoc ates, Inc. v. Sec'y of V eterans Affairs, 710 F.3d 1328, 1335 ( Fe d. Cir. 2013) (" [T] he cour t is

prepa red to consider sanctions for misc o n d u ct by the Gover nment and its responsible officials ") (empha sis added); F E D

. R. C I V

. P. 11(c) (1) (" the cour t may impose an appr opriate sa nction on any attorney
, law firm, or party that violated the rule or is responsible for the violation."). Additionally

, to the extent not otherwise provided in 38 U.S.C. § 7265, Congr ess would do we l l t o consider fashioning more appropr iate reme dies focuse d on unnece ssary and avoidable delay s that result from the actions of individuals so as not to unnece ssarily burden the public coff ers with Court-ord ered sanction awards. Cf. Veter ans Access, Choi ce, and Accountability Act of 2014, Pub. L

. No. 113- 146, § 707 (providing for the remova l of senior Depa rtment ex ecutives for perf ormanc e or misconduct). The taxpay er should not be an unpierc eable shield behind which Ag ency employ ees

can safe ly hide without any acc ountability

. Cf. Jones v. De r w i n s ki

, 1 Vet.App. 596, 607 (1991) (re cog nizi ng that "[i]f the improper conduct was solely due to individual ' fault or neg lige nce'

, then the individual attorney would be persona lly responsible for the satisfac tion of a financ ial sanction." (citing 44 Comp. Gen. 312 (1964))

.

On consider ation of the for eg oing, it is

10ORDERED that the petition f or extraordinary relief is DI SMI SSED I N PART as moot and GRANTED I

N PART to the extent that the Court finds the Secre tary in civil contempt. I t is further

ORDERED that sanctions in the form of a monetary fine other than rea sonable expenses associate d with the litigation of this petition are D ENI ED. I t is further

ORDERED that the Secre tary pay the rea sonable expenses associate d with the litigation of this matter as submitt ed to this Court, and serve d on the Secre tary
, by the petitioner and as approve d by the Court. I t is further

ORDERED that the petitioner, no later than 14 day s afte r the date of this order

, may submit

to the Court and serve on the Secre tary an application for expenses associate d with the litigation of the matter. I t is further

ORDERED that the Secre tary
, no later than 14 day s afte r the date of service of an application for e x penses, may

file with the C ourt and serve on the petit ioner, a response to the application. I t is further

ORDERED t hat t he C lerk shall furnish t he following per sons, in addition to t he petiti oner and the Secre tary ' s counsel, with a copy of this order : (a) VA Offic e of the Secre tary
, Offic e of the
Ex ecutive Secre tariat; (b) E x ecutive in Charg e and Vice Chairman, Boa rd of Veter ans' Appea ls; (c) Waco, Texas, Reg ional Offic e, Service Center Manag er; and (d) VA Offic e of I nspector Gene ral.

DATED: Nove mber 25, 2014 PER C URI AM.

KASOL D, Chief

Judge

, dissenting: This case involves the neg lige nt misfiling of the Court's Marc h 2012 rema

nd decision as an aff

irmance

, followed by a lack of response to Mr. Grove s' s letters of inquiry reg arding the rema nd order

. The parties do not contend, and the Court does not find, that

4

t h e Secre tary misfiled the rema nd order out of disrespec t for the Court, or in disobedi en ce o r resistanc e to the Court's order

. The parties do not contend, and the Court does not find, that the order

was misfiled intentionally or throug h g ros s n egl ige nce. Most importantly

, the parties do not 5
contend

, an d t h e Court does not find, that the neg lige nt misfiling in this case war rants or could

war rant sanctions under 28 U.S.C. § 7265(a) (3), nor could there proper ly be such a finding under the circ umstances here

. See Zambrano v. City of Tusti n , 885 F.2d 1473, 1480 (9th Cir. 19 8 9) (" Attorney s should not be d i s ci p lined by financ ial repr isal for conduct attributable to mistake, inadver tence or err or of judgme nt. Thus, courts have require d conduct amounting to rec klessness,

A s m y c o l l e a g u e s a c k n o w l e d g e , a l t h o u g h t h e p e t i t i o n e r a s s e r t s t h a t h e s u b m i t t e d e i g h t l e t t e r s t o t h e S e c r e t a r y 4

r e g a r d i n g h i s r e m a n d e d c l a i m , t h e S e c r e t a r y c o n f i r m s r e c e i p t o f o n l y f

o u r l e t t e r s a n d t h e p e t i t i o n e r p r o v i d e s a c e r t i f i c a t e

o f m a i l i n g f

o r o n l y o n e

. A n t e a t 3

- 4

.

I n d e e d

, t h e S e c r e t a r y e x p l a i n s h o w t h e d e c i s i o n m i s t a k e n l y w a s m i s f i l e d

, t h e r e i s n o a s s e r t i o n b y t h e p e t i t i o n e r 5

t o t h e c o n t r a r y , a n d m y c o l l e a g u e s a c k n o w l e d g e t h a t t h e S e c r e t a r y 's " i n i t i a l m i s

- e n t r y o f t h e C o u r t 's M a r c h 2 0 1 2 r e m a n d

o r d e r a s a n a f

f i r m a n c e i s a r g u a b l y u n d e r s t a n d a b l e

. " A n t e a t 6

.

11g ross neg lige nce, repe ated—a lthough unintentional—flouting of court rules, or willful misconduct

befor e approving the i mpositi on of m onetar y sanctions under

local rules. A practice that punishes

mere neg lige n ce o n t h e part of counsel is not nece ssary to the order ly functioning of the court
sy stem, espec ially in light of the availability of alterna tive rem ed i es." (interna l quotation marks omi t t ed ) (c i ting, inter alia, 18 U.S.C. § 401 (the fede ral contempt statute), which is mirrore d by 38 U.S.C. § 7265)); cf. Ho l me s v. C i ty of Massillon, Ohio

, 78 F.3d 1041, 1049 (6th Cir. 1996) (interpr eting fede ral court' s statutory authority to sanction attorney pursuant to 28 U.S.C. § 1927 for "unr easona

bl[ e] or vexatious[ ]" multipl ication of proce eding s and stating that "w e have deter mined that the application of § 1927 i s wa rr anted when an attorney has enga g ed in some sort of conduct that, from an objective standpoint, falls short of the obliga tions owed by a member of the bar to the

court and which, as a result, cause s additional expense to the opposing party

. Howe v er , the attorney ' s misconduct, while not require d to have been car ried out in bad faith, must amount to more than simple inadver

tence or neg lige nce that has frustra ted the trial judge ." (interna l quotation marks and citations omitted)).

Substantively , my

colleag ues ar e sanc tioning the Sec reta ry for f ailing to review and ac t on the petitioner' s letters. Although the Secre tary ' s lack of response to Mr. Grove s' s letters reg arding the

rema nd order is unacc eptable in my view and could constitute a proper basis for filing a petition and seeking mandamus to enfor ce the rema nd order

, such failing s do not conver t the neg lige nt misfiling 6
into disrespec t for the Court, or disobedience or resistenc e to a Court order

. I ndeed, afte r the petition

was filed with the Court (and serve d on the Secre tary ), the Secre tar y p ro m p t ly corr ecte d his mistake—notably

, befor e the Court ev en o rder ed the Secre tary to respond—a nd then promptly

proce ssed the rema

nded claim and awa

rded benef

its. Succinctly stated, with reg ard to the actions of the Secre tary toward the Court, there is no evidenc e of disrespec t or disobedience or resistanc e; there is only evidenc e of a

simple misfil ing.

The Secre tary ' s failure to reply to or act on Mr. Grove s' s letters was unacc eptable, but those failure s rela te to the Secre tary ' s mail handling and proce ssing of veter ans' letters, which undoubtably involves hundreds of thousands of letters annually

. I n the absenc e of evidenc e of disrespec t by the Secre tary for the Court, or disobedience or resistanc e by the Secre tary to a judicial order

, sanctions

are not war

rante d, nor, as I understand the law, permitted under section 7265(a) (3). Acc ording ly

, I would deny

the petitioner' s reque st for sanc tions.

O f n o t e , t h e e a r l i e s t l e t t e r f o r w h i c h t h e p e t i t i o n e r p r o v i d e s e v i d e n c e o f m a i l i n g i s A u g u s t 2 0 1 2

, j u s t t h r e e 6

m o n t h s a f

t e r m a n d a t e e n t e r e d i n M a y 2 0 1 2 o n t h e M a r c h 2 0 1 2 r e m a n d o r d e r

. T h e l a t e s t l e t t e r f o r w h i c h r e c e i p t b y t h e S e c r e t a r y i s c o n f

i r m e d w a s i n O c t o b e r 2 0 1 3

, w h i c h i s 1 7 m o n t h s a f t e r m a n d a t e i s s u e d o n t h e r e m a n d o r d e r

. I t i s

a x i o m a t i c t h a t t h e r i g h t t o a " w r i t d o e s n o t e x i s t u n l e s s t h e p e t i t i o n e r d e m o n s t r a t e s t h a t t h e a l l e g e d d e l a y i s s o

e x t r a o r d i n a r y , g i v e n t h e d e m a n d s o n a n d r e s o u r c e s o f t h e S e c r e t a r y , t h a t i t i s e q u i v a l e n t t o a n a r b i t r a r y r e f u s a l b y t h e S e c r e t a r y t o a c t

. " S t r a t f o r d v

. P e a k e , 2 2 V e t

. A p p

. 3 1 3

, 3 1 4 ( 2 0 0 8 ) ( p e r c u r i a m o r d e r ) ; s e e a l s o C h a n d l e r v

. B r o w n , 1 0 V e t

. A p p

. 1 7 5

, 1 7 7

- 7 8 ( 1 9 9 7 ) ( n o t i n g t h a t a d e l a y o f t w o a n d o n e

- h a l f

y e a r s i n t h e R O 's a d

j u d i c a t i o n o f

a c l a i m e v e n

a f t e r r e m a n d w a s n o t u n r e a s o n a b l e u n d e r t h e c i r c u m s t a n c e s ) ; E r s p a m e r v

. D e r w i n s k i
, 1 V e t

. A p p

. 3

, 1 0 ( 1 9 9 0 ) ( n o t i n g
t h a t a r e a s o n a b l e t i m e t o a c t o n a r e m a n d e d c l a i m m a y e n c o m p a s s " 'm o n t h s , o c c a s i o n a l l y a y e a r o r t w o , b u t n o t s e v e r a l

y e a r s o r a d e c a d e '" ( q u o t i n g C m t y

. N u t r i t i o n I n s t

. v

. Y o u n g , 7 7 3 F

. 2 d 1 3 5 6

, 1 3 6 1 ( D

. C

. C i r

. 1 9 8 5 ) ) )

. R e g a r d l e s s , g i v e n
t h e S e c r e t a r y 's c o r r e c t i v e a c t i o n u p o n f i l i n g o f t h e p e t i t i o n , t h e C o u r t n e e d n o t d e t e r m i n e

— a n d h a s n o t s o d e t e r m i n e d

— i f

t h e p e t i t i o n e r w o u l d h a v e s a t i s f i e d h i s b u r d e n o f d e m o n s t r a t i n g a c l e a r a n d i n d i s p u t a b l e r i g h t t o a w r i t

.

12