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CAVC Doc

CAVC Doc

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Published by Jim
CAVC Ruling
CAVC Ruling

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Published by: Jim on Oct 09, 2013
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11/11/2013

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 Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
 N
O
. 13-2723E
ARNEST
E
LLIOTT
,
 
J
.,
 
P
ETITIONER 
,
V
.E
RIC
K.
 
S
HINSEKI
,S
ECRETARY OF
V
ETERANS
A
FFAIRS
,
 
ESPONDENT
.Before KASOLD,
Chief Judge
.
O R D E R 
 Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.
On August 26, 2013, the petitioner filed pro se a petition for extraordinary relief in the natureof a writ of mandamus to compel the Secretary to certify an appeal to the Board of Veterans' Appeals(Board). The petitioner asserts that he first filed his claim in October 2006 and that the Secretaryhas refused to adjudicate his claim. He also points out that he previously petitioned the Court inSeptember 2012 (Docket No. 12-2909) regarding the same claim. A review of that petition reflectsthat it was denied because the petitioner failed to demonstrate that the Secretary was refusing to process his claim. More specifically, the petitioner had submitted additional evidence to the regionaloffice (RO) less than a year prior to his petition, and the RO had informed him that the processingof his claim might be delayed as a result of the large number of claims that were pending. In hiscurrent petition, the petitioner states that he has written and called the RO to no avail, but he failsto state whether any of these attempts postdate denial of his prior petition."The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations,"
 Kerr v. U.S. Dist. Court 
, 426 U.S. 394, 402 (1976), and only when, inter alia, there is a clear andindisputable right to the writ and a lack of adequate alternative means to attain the desired relief,
Cheney v. U.S. Dist. Court 
, 542 U.S. 367, 380-81 (2004). Moreover, when delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not existunless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands onand resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.
Costanza v. West 
, 12 Vet.App. 133, 134 (1999) (per curiam order).Although it has been more than one year since the Secretary notified the petitioner regardingthe status of his claim, the appellant fails to demonstrate that the passage of time reflects an arbitrary

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