Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-2723 EARNEST ELLIOTT, JR., PETITIONER,
V.

ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before KASOLD, Chief Judge. ORDER 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 nature of 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 Secretary has refused to adjudicate his claim. He also points out that he previously petitioned the Court in September 2012 (Docket No. 12-2909) regarding the same claim. A review of that petition reflects that 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 regional office (RO) less than a year prior to his petition, and the RO had informed him that the processing of his claim might be delayed as a result of the large number of claims that were pending. In his current petition, the petitioner states that he has written and called the RO to no avail, but he fails to 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 and indisputable 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 exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and 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 regarding the status of his claim, the appellant fails to demonstrate that the passage of time reflects an arbitrary

refusal to act. See Chandler v. Brown, 10 Vet.App. 175, 177-78 (1997) (holding that a delay of two and one-half years for the RO to adjudicate a claim after remand was not unreasonable); see also In re Monroe Commc'ns Corp., 840 F.2d 942 (D.C. Cir. 1988) (five-year delay in agency action not so great as to be subject to mandamus). Moreover, the petitioner fails to demonstrate that he lacks an adequate alternative to mandamus. Although he states he has written and called the RO, he does not state when this effort was undertaken. Assuming arguendo that the petitioner has contacted the RO subsequent to his last petition, he nevertheless fails to demonstrate that he expended any effort in trying to resolve the delay by contacting other appropriate officials such as the Secretary or the Under Secretary for Benefits. See Costanza, supra (finding that petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing petition). In sum, the petitioner fails to demonstrate that a writ of mandamus is warranted. Upon consideration of the foregoing, it is ORDERED that the petition for extraordinary relief in the nature of a writ of mandamus is DENIED. DATED: October 4, 2013 BY THE COURT:

BRUCE E. KASOLD Chief Judge Copies to: Earnest Elliott, Jr. VA General Counsel (027)

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