Better Not Pout, Better Not Shout

Remember the old ditty from Santa Claus is Coming to Town? Just imagine yourself in Keith Roberts’ shoes.  I posted a not so flattering summary of his first tête a tête with the VA (and the CAVC) last year based on the published CAVC record. What that unfortunately didn’t reflect was a win for Keith before a panel of the Court. The VASEC subsequently insisted on an en banc review which resulted in a split decision. The same panel members sat in dissent of the en banc one.

My myopic assessment, as I mentioned, was a one-sided affair that unfortunately cast Keith in a horrible light. I was sent a different set of facts shortly after the new year and posted anew with the truer state of affairs. Keith chose to stand by his guns and go to prison for nigh on four years rather than cop a plea or admit guilt-hardly the actions of a criminal. It speaks volumes to his desire to be exonerated with no blemish on his record. In short, it speaks volumes about the 8% of us who chose not to be selfish and defend this great country of ours. Mr. Roberts found himself at this juncture not from greed but at the urging of his VSO representation (or lack thereof).

Mr. Roberts got little justice at the Federal Circuit when he appealed there. It seems everyone wanted to turn a blind eye towards some of the shoddier aspects of this bum’s rush to justice. In fact, the judges were less interested in the legal niceties and more consumed with the propriety of their Texas necktie party. In what can only be viewed as a political statement, they hung old Keith out on the clothesline with yesterday’s laundry. This began during the Bush presidency so we cannot legitimately hang it on Obama’s doorknob. The mere fact that he didn’t intervene shouldn’t be read as a continuing political statement on the appropriateness of this but it is. I hate politics and this is one more example of why I have disassociated myself from the process. Democracy as a theory is priceless. In practice it’s rife with corruption and cronyism.  No thank you.

We are entering uncharted waters under this administration much like the Carter years. We are witnessing the gradual dismemberment of our might and our ability to be the world’s cop. Wars deplete our treasury and inflict pain on all of us.  One of the unlikely offshoots of this is the large amount of collateral damage in human life. Veterans are just the lucky ones who survive this. Because of our government’s limited amount of funds and their propensity to spend far more than they collect in taxes, some sort of triage must be employed to dampen Veterans’ enthusiasm for seeking compensation.  Et voila! Enter one Keith Roberts-the perfect foil.

Attached below is the Reply Brief by the Petitioner. This is Mr. Roberts attempt to have his case heard before the Supreme Court. Merely appealing  the Fed. Cir. affirmation does not guarantee a docket. There is a whole litany of forms and pleadings to get your writ of certiorari. In some ways, it’s akin to the process of obtaining an extraordinary writ of Mandamus. You have to prove you and your case belong there. The threshold for admittance is high. Here, in the Reply Brief, the rainmakers are trying to show cause as to why this case is seminal to Veterans (and by extension, all citizens) jurisprudence. I think if every one of you read this carefully, you will discover why Keith’s plight is just a stone’s throw away from ours. I suspect very few  Veterans realize that the non-adversarial system we inhabit can turn on us like a rabid pit bull when goaded to by political expediency. Oddly, this is an old VSO wive’s tale that has unfortunately come to life like a  vengeful Chucky doll.

After numerous discussions with his attorney, I was appalled to discover that the VA is bound by the tenets of the Administrative Practices Act (APA) but barely pays lip service to it. Let me rephrase that. They worship on Sunday at the alter of the APA and continue to drink and fornicate with abandon on the other six days. To put that in perspective for Vets, allow me to expound on this, however inarticulately. Since the inception of the VJRA of 1988, the VA has begrudgingly acknowledged they would adhere to the APA. It protects citizens against that small contingent of  overzealous prosecuting attorneys who see a conspiracy or insidious scheme afoot under every rock. Litigants before Administrative Law Judges (ALJ), the ones who adjudicate Social Security appeals, are accorded this legal nicety. That benefits adjudication system is every bit as adversarial as ours but they don’t couch it in the fluffy puffery of “veteran friendly” and “non-adversarial”  terms. Everyone knows the SSI/SSD experience at the lower levels is adversarial. This is why a specially trained cadre of legal beagles has evolved whose sole purpose is to gain these rights for the deserving. When denied at the lower tribunal, they turn to an ALJ. ALJs are truly independent. They don’t have quotas for speeding tickets. They don’t have to have a high denial percentage to get a bonus. Pardonnez-moi? What bonus? There is none in that system. It is impartial and immune to coercion by the government in every respect. This is how it should be. This is also why people are willing to strap on their water wings and swim 90 miles from Cuba to America. Our system of justice is like no other in the world.

On the other hand, let’s look at the Veterans Administration and its stable of Veterans Law Judges (VLJs). Everything looks the same. The VA would have us believe the two are identical in format and outcome. Moreover, they would insist the protections accorded Vets are even more stringent than their civilian progeny. In fact, the BVA system differs mightily from its SSI sibling in the most important facet- that of an impartial judiciary. The BVA and its VLJs are all part and parcel of the  Veterans Secretary’s legal system. He hires and fires his prosecuting attorneys, judges and paralegals. What he says goes. When he says “Jump!”, the universal chorus is “How High?” The impartial system envisaged in the APA and employed by the ALJ judiciary is nowhere to be seen at the BVA.  Nevertheless the VA insists it embraces the tenets of the APA in its entirety. Did you know VLJs get bonuses every Christmas if they don’t pout and shout and kow-tow to the party line? I googled one VLJ and discovered he donates regularly to whichever political party is currently occupying the Casa Blanca. While I’m sure he is just a stand up citizen doing his patriotic duty for our wondrous political process, one might come away with more questions than an answers.

Imagine getting a speeding ticket in a city municipal setting. Let’s say you go to court to contest it. When you arrive, you see the cop who wrote you the ticket stuffing donuts down his piehole and yacking it up with the prosecutor. Let’s pretend they’re good friends and hunting buddies. You still don’t feel intimidated by this because you are a citizen of the Fruited Plain. In comes the Judge and he promptly goes over and fist bumps the cop and the prosecutor. Perhaps he gazes over at you and gives you that “so this is the miscreant” look. Okay, you’re getting a little uncomfortable. This may not go well locally and let’s say it doesn’t. On appeal to the County superior court, you arrive early and discover the cop, the prosecutor and the municipal judge yacking it up with a box of Krispy Kremes in the Superior Court judge’s chambers. When they see you, they pointedly close the door in your face to avoid the appearance of impropriety. When court convenes, everyone’s demeanor is one of utmost professionalism and proper decorum. You can see the writing on the wall. You’re screwed but it all appears legitimate on its face. Ladies and gentlemen Vets, welcome to your VA adjudication and claims benefits system. This is what Keith Roberts found himself facing. Getting justice in an environment where the political party in power appoints the head of the VA is all well and fine. If the influence ended there and VLJs were truly independent like ALJs, I wouldn’t be writing this. Since it doesn’t and they aren’t, I am.

I’m not a shill for Keith Roberts or his attorney. I don’t have to be. I can read and make  sense of this without Cliff Notes. I submit that I could make my labradog Molly understand it if it incorporated a tennis ball.  Reading the Reply Brief is like a punch list repair order for all that’s wrong with the Veteran friendly VA. It enumerates all the errors and the blatant collusion. It  illuminates the Good Ol’ Boy network where many wear the same school tie and have a secret handshake. It exposes to the light of day the short circuit of justice in pursuit of making an example of a Vet to keep us “negroes” in our place.

Punishing one Vet with great fanfare and media complicity goes a long way towards subduing uppity Veterans who might contemplate asking for the remuneration that is legitimately theirs. If it doesn’t prevent Vets from seeking compensation outright, it still casts a pall on the process for many. Someone inclined to seek that which is his or her due, might feel compelled to settle for far less at the risk of losing it all to an overzealous VAOIG with the full backing of the VAOGC and the VASEC.

Take heart in the fact that there are still a few dedicated attorneys with our best interests in mind. Most do this for a pittance or pro bono. Some are Veterans but even more are the children of them. They may have no grounding in the rigors of military service yet nonetheless feel compelled to pick up our banner and carry it for us anyway. Count your blessings that we have this counterweight to what is unarguably a decidedly adversarial process in everything but name only. Benefit of the doubt my ass.

11-603 Reply Brief

About asknod

VA claims blogger
This entry was posted in All about Veterans, Fed. Cir. & Supreme Ct., PTSD, vA news, Veterans Law and tagged , , , , , , , . Bookmark the permalink.

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