Boy howdy won’t it be fun to get more respect when you go up to the Big House (625 Native Americana Ave. NW) now? For decades- since 1989- we’ve been treated like the retarded aunt who lives upstairs in the spare bedroom. Face it. Veterans (both officers and enlisted) are considered somewhere above whaleshit and below respectable when they get to the higher echelons of VA jurisprudence. We’re considered Wallmarket® shoppers who live in run down trailer parks and fake falls at the local Piggly Wiggly Mart™. Seriously, our credibility is always called into question. Our motives are suspect and the only respect we get is from our fellow citizens. Rodney Dangerfield didn’t hold a candle to our tales of woe.
So imagine our surprise when Judges Newman, O’Malley and Wallach blew a hole in jurisprudence and held all these years-nay decades- the Court has had the power to grant Equitable Estoppel to Veterans and has eschewed same. That’s a gross legal error that has been perpetuated by these jokers since 1989. Let me enunciate what all you Defenders of America have been entitled to lo these many years. But first, since I know there are a lot of nonlawyers out there who aren’t up to speed on all the Latin, let me tell you what you just won behind door number 3 in Vetspeak.
From the Law.com legal dictionary, I reprint in haec verba (preposition. Latin for “in these words,” which refers to stating the exact language of an agreement in a complaint or other pleading):
n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: “he who seeks equity, must do equity.” Example: Larry Landlord rents space to Dora Dressmaker in his shopping center but falsely tells her a Sears store will be a tenant and will draw customers to the project. He does not tell her a new freeway is going to divert traffic from the center. When she fails to pay her rent due to lack of business, Landlord sues her for breach of lease. Dressmaker may claim he is equitably estopped.
Now, for years, the Court has always ruled they are not a “Court of Equity” -i.e., they did not have the power to amend an obvious wrong. Their judicial authority as a Title I court allowed them to rule up or down based solely on case or controversy. Veterans seeking “equity” (and boy howdy has that word ever been bandied about recently), in VAspeak is a reference to 38 USC §503 wherein the VA Secretary can be petitioned for redress when you, the Vet, have been screwed out of your benefits for decades and finally get only a small, rump settlement. This is called petitioning for Equitable Relief and never to be confused with Equitable Estoppel. It isn’t a claim and you can’t appeal a denial up to the BVA and the Court if the VASEC declines to pay out. Your chances of getting Eq. relief are the same as Powerball lottery odds.
Now how this plays out up at Saint Meg’s Fun House is simple in spite of the convoluted wording. When Secretary Denis “the Menace” McDonough and his merry band of OGC troglodytes show up to discredit you after you appeal your Texas Necktie party at the BVA , if they have committed unseemly acts of lying, ignoring the evidence or misconstruing what you want, the Court can legally hold that Denis cheated and they cannot in good conscience affirm an unholy, fusterclucked BVA decision written by a lawdog VLJ who graduated dead-last in his law school class.
In VA jurisprudence, we are a protected class of citizens. We’re unique and because we have borne the battle, we get special legal treatment that average folks don’t. Equitable Estoppel, as a tool to right a wrong, is pretty heady stuff. Considering that 74% of cases that come before the CAVC are reversed, vacated or set aside (and all remanded to be fixed below), this becomes what we used to call up on the Plain of Jars, in a country that rhymes with mouse, an extremely target-rich environment.
Sadly, the Court became infested in the last few years with some old JAGs and their ilk who consider us untermenschen. Their brand of UCMJ justice demands we not benefit financially and any who seek justice are undoubtedly charter members of the Slip-on-the-floor Club at Piggly Wiggly. It will be interesting to inventory those who are willing to grant us this new legal standard and those who are not. I’m guessing the fracture line is Bartley, Pietsch, Greenberg and Allen being extremely amenable and Meredith, Laurer, Toth, Falvey and Jacquith loath to employ it under any circumstances. I pray I’m wrong. Judge Coral Wong Pietsch was at first unduly influenced by the Court’s “conservatives” when she was anointed. Fortunately, she came to her senses quickly and became far more liberal in her dispensations of law.
Which brings us to an interesting phone call; two actually. Bruce R. Taylor, of Taylor v. McDonough fame, called me Friday morning after the Exposed Vet radio show and wanted to know why I gave all the attaboys to Ken Carpenter and none to his swordbearer, Mark B. Jones, Esq. of Sandpoint Idaho. Truth be told, Mr. Jones’ name didn’t appear on the brief at the Fed. Circus. Mr. Jones is not admitted to the bar there. Ken is. When the Court panel of Judges Falvey, Meredith and Greenberg (Greenberg dissenting) affirmed the BVA decision to deny Mr. Taylor -who goes not by Bruce but by the patronym of his middle name of Robert (Bob).
Since Bob was so agitated about my lack of respect for Mr. Jones’ legal machinations, I gave him (Mark Jones) a call to find out how this all came down. Turns out Mark and Bob are old friends. Mark used to be a cop and chase the bad guys. Bob had tracking dogs so he and Mark were constantly out in the field chasing escaped prisoners or wanted felons-when they weren’t out in the field hunting or fishing together. Mark decided he was on the wrong side of the fence and went to college, matriculated to law school and became an attorney. Succeed he did, yessss.
So, when old Bob got the inevitable shaft from Denis the Menace, he naturally turned to Mark to defend him. Now Mark, as most all of us, knew the Court has never entertained proffering Equitable anything to Vets, so he didn’t bother couching his brief on that facet and instead went for the tried-and-true Phil Cushman due process violation argument. Judge Greenberg chided him at the oral brief on whether he thought Eq. Estoppel might be a suitable remedy as relief. How in Sam Hill do you argue for something that isn’t on the menu? Why even waste your breath?
Ken Carpenter entered the picture when Bob arrived at the CAVC. He approached Mark and said “Hey, if you get bushwhacked, call me. I’ll take it up to the Fed Circus for you.” Ken, likewise, didn’t pursue the Eq. estoppel angle for the same reason Mark didn’t. I’m all for novel concepts of VA justice and frequently try to reach for some things that legally appear unattainable. When you don’t have a J.D. after your name, you don’t know what you can’t do. I had a Vet who readily admitted he snorted the White Lady in ’88 but claimed the jetguns and gonorrhea were the cause of his Hep C in 1970. His appeal was dead on arrival but I argued in person in front of VLJ Matt Blackwelder that it was chronologically impossible to reach Stage IV cirrhosis with ascites in anything less than 40-50 years. 1988 to his diagnosis in 2012 would equal only 24 years. We won but I was highly doubtful that I was the silver-tongued devil who could pull it off.
Last, but not least, I received some comments on this “who should get the credit” game from a concerned reader. Her professed belief was that Judge Greenberg-not Ken or Mark- should get the credit for the win because he, in spite of being in the minority in his dissent, had insisted Eq. Estoppel was a tool available to the Court to right this obvious wrong. Well, ”not exactly’ as they say down at the rental car place. The problem with this misplaced accolade is that Judge Greenberg is not accredited by the VA and is not a practitioner. He’s the Judge. Duh? You can’t look in the NOVA directory and say Whoo doggies. That Greenberg-he’s the guy I want for my law dog. Actually, Mark Jones isn’t in the NOVA directory either. He was just good friends with Bob. Bob would never have been lucky enough to knock on Mr. Carpenter’s door and obtain representation at the outset back in 2007. The confluence of events that led Mr. Carpenter to the Fed Circus was nebulous at best. So yes, in a roundabout fashion, Ken Carpenter did win this for Bob-not Judge Greenberg. It’s safe to say Greenberg put the bug in Wallach’s, O’Malley’s and Newman’s ear but nothing more. As the commenter stated, the Feds went out of their way to entertain sua sponte (another of those Latin hamburgers meaning they gave him a win via Eq. estoppel even though ol’ Kenny didn’t specifically beg for estoppel).
The win does have purse strings. Eq. Estoppel is only available to otherwise entitled Vets who have been deprived via a misreading of the clear meaning of a statute or regulation. How the evidence was evaluated is still not going to be a reason for this benefit.
Granted, the Feds were the angels who reversed decades of improper jurisprudence and enunciated the proper interpretation of the relief available to the Court. Ken didn’t argue this at oral as I mentioned. He labored under the same misunderstanding as Mark did- that seeking Eq. estoppel was a pipedream and about as likely as getting hit by lightning in your basement or getting all the right numbers on a $500 million lottery ticket.
To me, it’s immaterial who the chicken dinner winner is. It also remains to be seen if Denis the Menace will allow this to pass like a painful kidney stone and move on or go up to the Supreme Court seeking certiorari. The obvious winners are us. We’ve just been given one more tool with which to put the thumb of justice on our side of the scales. The part that sticks in my craw is that it should have been available to us all these aeons and is only now being granted. It’s like finding out that Santa Claus is your second biological parent (or co-parent). Think how many of us lost because of the perfidy of past VASECs and their toadies. Nah. That’s too depressing.
And that’s all I’m going to say about that.
P.S. About that country that rhymed with mouse. My Non-Disclosure Agreement, like Mr. Taylor’s, expired last fall on October 2, 2020 after fifty years. Unlike him, I didn’t get a letter from Air America saying Ollie Ollie In Come Free!. Bottom left, kneeling, you will find me at 19 years old. Here’s a few of the old Project 404 gang. I often wonder what became of all these folks. We made Terry and the Pirates look like rank amateurs.