 |
| Keith Roberts was hounded by the U.S. Department of Justice and Dept of Veterans Affairs (VA) because Roberts blew the whistle on the VA for altering his Claim Files; and spoke impolitely in seeking a retroactive date for PTSD benefits, on the advice of his local Veterans Service Officer. We dishonored and killed this good man. |
Keith Roberts Was Betrayed, Defamed, by the U.S. Dept of Veterans Affairs and U.S. Dept of Justice
Commentary on an American tragedy
Madison, Wisconsin — Keith Albert Roberts (April 13, 1948 - July 11, 2023) of Gillett, Wisconsin, passed away last week in hospice at home, at age 75.
A teenager who enlisted in the U.S. Navy in the 1960s during a combat era, a patriotic Keith Roberts was a typical northern Wisconsin guy. Keith loved fishing, beer, straight talk, fixing stuff yourself, his family, country, women, the Packers, God and humor.
So, Keith joined the U.S. Navy — serve your country, see the world; great idea for a young man, right?
| . |
 |
| Wisconsin's Keith Roberts is a veteran at age 19 — whom we then betrayed, a man who will never be made whole by what baleful U.S. officials acting from base motives inflicted onto an innocent man from northern Wisconsin |
Wrong.
Naval Base Accident
While stationed at a Naval air base
in Naples, Italy in 1969, Keith Roberts was serving on line duty, when a safety screw-up, [someone stuck a screwdriver in place of a safety pin on a C-54 military transport, before removing the supporting jacks of the plane that made the airplane unstable and dangerous with faulty front, main landing gear], resulted in Roberts' friend and fellow Airman, Florida native Airman Gary Holland, being
crushed to death by the C-54 as Holland lay trapped.
I would challenge my fellow Americans to contemplate how you might feel losing a friend with whom you work and live in close quarters at several bases for years as the weight of a military jet crushes your friend, after fractures and other bodily trauma are cruelly inflicted under 1,000s of pounds of weight. Speaking to people who were there, and reading reports of interviews with people who were there, I can assure you on the memory of my Mother and the health of my wife, this is not how you want to die.
After doing everything he could to save Gary Holland during base equivalent of general quarters, including trying to get a forklift to hoist the plane, Roberts received a "Special Enlisted Personnel Performance Evaluation"
(the military equivalent of a pat on the back for the then-young
airman) two days after the death of Airman Holland for Roberts' role in the
chaotic event.
Later that same year, Keith was assaulted by the Navy Shore Patrol (assholes back then) and forcefully hospitalized in this unrelated event.
One man, Gary, needlessly dies, his friend, Keith, lives in pain.
Roberts believed that negligence caused Holland’s death and that the
Navy covered it up, blaming the dead and young Holland who could not
defend himself.
So, the United State government decided, let's get the guy alive; he's asking for help. That's what happened to Keith Roberts.
PTSD
Vietnam War vetrean Keith Roberts did not later deal well with his few years in the Navy.
And although Keith was an exceptionally intelligent man, he didn't know much about PTSD or what a veteran was supposed to do years after his service.
After his honorable discharge in 1971, Keith Roberts sought help from the mental health field from which he received several diagnosis and treatments for PTSD.
Keith filed for disability benefits in 1999 for post-traumatic stress disorder (PTSD) and was forced to relate his claim to specific stressors, from the assault by the Navy
Shore Patrol in 1969, and the gruesome aircraft accident, also in 1969 at Naples, Italy where Roberts
was stationed.
Like 100,000s of veterans, Roberts engaged the convoluted processes of the U.S. Dept of Veterans Affairs (VA) bureaucracy seeking disability benefits in what is supposed to be a non-adversarial process, per the Veterans' Judicial Review Act (1988)
that also empowers veterans with the right to judicial review of decisions
involving their benefits under the exclusive authority of legislatively created VA adjudication procedures (Mal Contends).
Roberts was granted disability benefits. Then in 2002, on the advice of Jim Henning, (now deceased) Shawano County (Wisconsin) Veteran's Service
Officer, he sought an earlier effective date of PTSD disability payments.
The VA didn't like it. Roberts gets disability benefits, pretty soon 100,000s of Vietnam veterans are asking for disability benefits, is their thinking, according to virtually every Vietnam veteran whom I have spoken to on these matters.
As Gil Halsted of Wisconsin Public Radio reported: "Some veterans advocates say the case is part of a broader effort by
the Bush Administration to discourage veterans from seeking retroactive
benefits for post-traumatic stress disorder."
WPR's Halsted also reported in 2008 on Wisconsin Public Radio, via WisCommunity: "Timothy Funnel, U.S. Attorney's office, who prosecuted Roberts for fraud, says [Roberts asking for an earlier retroactive date] was a mistake. Funnel says trying to get more benefits triggered an investigation that refuted Roberts’ PTSD claims and resulted in his fraud conviction. He says Roberts would in all likelihood be 'sitting in Oconto County receiving his monthly compensation benefit check' if he had not because of 'his own greed' sought this large retroactive payment."
Henning and Roberts were not involved in some scheme; were not motivated by "greed." They were filling paperwork and doing what these two were supposed to be doing in reciting requested facts, what we as a country should be supporting.
But after being diagnosed with PTSD, and granted disability benefits, Roberts had no idea that political
and bureaucratic forces allied with the VA had adopted policies of the rightwing think
tank, American Enterprise Institute (AEI), ultimately resulting in Roberts’ prosecution for wire fraud after Roberts phoned the VA and the VA Inspector General's Office and complained that
the VA is engaging in fraud — (they were, and Roberts is also an early whistleblower in what came to be known as ShredderGate, (destruction and altering of veterans' Claim (C) Files to subvert claims)) — in processing his PTSD disability claim.
Roberts's phone call and accusation of VA fraud sounded alarm bells at the VA — but not to help veterans; rather, to get Roberts.
So, the VA, in violation of regulations (see Motion below by Roberts' attorney, Bob Walsh), the United States Dept of Justice retaliated, and worked to charge and convict Roberts in 2006, after stopping his PTSD benefits.
Accuse a government agency of misconduct, and often they will retaliate.
Reads a U.S. Department of Justice, United States Attorney’s Office, Eastern District of Wisconsin press release (via Mal Contends) from March 5, 2007:
The DoJ indictment is demonstrably false, but even granted its silly and false assertions and premises, is absurd grounds for a federal criminal indictment for fraud.
Roberts was an airman stationed at the Naval Air Facility in Naples, Italy, in 1969. The indictment alleged,and the government proved at trial, that Roberts fabricated his role in the attempted rescue of an airman who was killed at the Naval Air Facility on February 4, 1969. Roberts also fabricated his relationship with that airman.
The persecution and miscarriage of justice inflicted on Keith Roberts by the U.S. government was not ignored, and Roberts' family asked me to note this work here: Veterans' press across the country in Florida, Iowa, all over; Scott Horton in Harper's Magazine; Lee Rayburn, journalist and radio host, who advanced the story after a background source from the VA Milwaukee Regional Office came forward and confirmed major facts and elements of Keith's story; Gil Halsted of Wisconsin Public Radio ran several pieces, (Wisconsin Public Radio, 2008); Wisconsin State Journal ran an op-ed piece; Op-ed News; Josh Coffman in the daily News-Enterprise (Kentucky); Dan Cedusky and many others.
Rayburn's series on Roberts bore fruit, and one hopes the VA Medical Center source comes public, to not win Roberts' freedom or his life, but his honor.
"[T]he only reason Airman Roberts was ever prosecuted was because he was
a ‘belligerent ass’ who kept insisting that he get paid back to
discharge. He was demanding an appeal in Washington," said a background
source at the Clement J. Zablocki VA Medical Center in Milwaukee who e-mailed the Lee Rayburn radio show in Madison
in early June 2007 after a program about the Roberts case, and asked to
remain anonymous out of fear of losing his job. "I'd have to say that
you guys are TOTALLY (uppercase in the original) right about Roberts'
conviction being bullshit," is the email quote Rayburn featured on his show.
Truth is Keith Roberts suffered in prison, 2007-2010, was sent into solidarity confinement, had a heart attack and never regained his full health.
Bob Walsh
Even the passionate and brilliant advocacy of veterans' attorney Bob Walsh could not save and exonerate Keith Roberts from the dishonest work of the VA and the United States Department of Justice.
As recounted by Jack Lessenberry, Bob Walsh who represented and helped Keith Roberts for some 18 years, never gave up. Writes Lessenberry:
Robert Walsh isn’t just another attorney. His practice is largely centered on veterans, especially those he thinks have gotten a rotten deal from the government.But neo-liberals and the Obama and Biden administrations offered no assistance to Keith Roberts and other veterans targeted by the VA and assorted bureaucrats.
He knows something about this. Mr. Walsh, now 72, was a combat infantryman in Vietnam with the fabled 101st Airborne Division. Later, as a civilian, he worked in telecommunications for the U.S. Army during the first Gulf War. He didn’t graduate from law school until he was 40, and then he worked as a staff attorney for the U.S. Department of Veterans’ Affairs.
Now, he tries to help those who he feels have been mistreated by the V.A. — especially victims of PTSD — Post-Traumatic Stress Disorder. After George W. Bush was elected president and started the Iraq War, Mr. Walsh said, 'Karl Rove and Dick Cheney declared war on PTSD. They wanted to deny there was any such thing.'
Walsh had already seen a lot misconduct from the VA when the VA Office of Inspector General's flunky cop, Raymond Vasil, was chased out of the Lombard, Illinois Police Department under a cloud of misconduct allegations and quickly joined the VA to make victims of veterans.
Vasil rapidly established himself as "an idiot with a badge," as termed by many veterans' advocates.
In one exchange from Vasil’s Grand Jury testimony indicating his knowledge of the VA benefits process, upon which the indictment is predicated, Vasil appears clueless on his familiarity with VA benefit procedures:
Question: “Is that part of your training that you have to know the basics of how these programs work?”
Vasil’s Answer: “Yeah. I was briefly kind of instructed when I was hired, and then just while working for them, you have to learn it to investigate the cases.”
At the U.S. Supreme Court in 2010, Chief Justice John Roberts questioned Assistant to the Solicitor General Anthony Yang during oral argument in a major federal benefits-related case, Astrue v. Ratliff, 560 U.S. 586 (2010).
Asked Justice Roberts of Assistant to the Solicitor General Anthony Yang, "In litigating with veterans, the government more often than not takes a position that is substantially unjustified?"
Yes, Justice Roberts was informed.
Roberts found this "really startling."
Yeah, startling.
Bob Walsh blew up the bogus criminal case against Roberts again in 2019, after Roberts' family and Walsh tracked down Roberts' officer-in-charge, Robert Don Hathaway, who was stationed at the Naples air base.
 |
| Men of honor have come forward to speak the truth about the 2005-06 prosecution of Wisconsin's Keith Roberts for fraud, a crusade that has netted the lives of many military veterans in other cases. Commander, United States Navy (ret), Robert Don Hathaway set the record straight in 2019, as bureaucrats crawl back under the rocks where they live and work. |
Hathaway conducted a four-hour deposition. See Mal Contends.
Hathaway, Commander, United States Navy (ret), is described as a no-nonsense Navy officer who reacted with surprise at news of the Roberts affair.
Hathaway's April 12, 2019 affidavit in sum corroborates Roberts' recollection of the death scene and utterly disconfirms the United States Dept of Justice's ridiculous indictment that Roberts misled the VA about his actions.
Hathaway was not interviewed by the VA Office of Inspector General's idiot with a badge, Raymond Vasil, whose fraudulant testimony is the sole basis for the criminal indictment of Keith Roberts.
Keith Roberts told me late in life, that were he able to redo his life, he would have moved his family to Canada.
I don't blame Keith, not a bit.
Walsh's latest legal filing, below (unformatted), is dated in late June 2023, some three weeks before Keith Roberts died; not legally exonerated; not made whole; and not given back his good name and honor.
Bob Walsh and Keith Roberts are still looking for honor.
Decency and duty drove a Wisconsin Navy veteran to act in an unsuccessful attempt to save a fellow airman from being crushed to death by a 73,000-pound C-54 transport aircraft at a Naval airbase in Naples, Italy on Feb 4, 1969.
We owe this veteran and his family his good name.
---
 |
| Robert Walsh: Attorney, veteran, and combat infantryman in Vietnam with fabled 101st Airborne Division, fights for veterans, and Keith Roberts, Toledo Blade. |
BOARD OF VETERANS’ APPEALS
425 I STREET N.W.
WASHINGTON, DC 20038
Docket No. 03-04 265
KEITH ALBERT ROBERTS
C 28 353 461
Claimant-Appellant
MOTION OF CLAIMANT-APPELLANT FOR VACATURE
OF THE DECISION OF THE BOARD DATED
AUGUST 26, 2005, DOCKET NUMBER 03-04 265
AND
REVISION OF ALL SUBSEQUENT DECISIONS WHICH HAVE DENIED RESTORATION OF BENEFITS SEVERED IN THAT DECISION
IN ACCORDANCE WITH 38 C.F.R. § 20.1000
AND FOR RESTORATION OF SERVICE
CONNECTED DISABILITY BENEFITS
AT THE 100 PERCENT LEVEL
NUNC PRO TUNC TO NOVEMBER 14, 1990
AND
MOTION TO ADVANCE ON THE DOCKET IN ACCORDANCE WITH
38 C.F.R. § 20.902 ( c ).
BRIEF IN SUPPORT OF MOTIONS TO VACATE AND ADVANCE
ON THE DOCKET
WAIVER OF ORIGINAL JURISDICTION
CERTIFICATE OF SERVICE
APPENDIX
ROBERT P. WALSH, Esq.
2 Michigan Avenue West
Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9693
E-mail: robert@robertpwalsh.com
Attorney for Claimant-Appellant
1. TABLE OF CONTENTS
1.TABLE OF CONTENTS........................................i
2.TABLE OF AUTHORITIES....................................iv
3. MOTION OF CLAIMANT-APPELLANT FOR VACATURE
OF THE DECISION OF THE BOARD DATED AUGUST 26, 2005,
IN ACCORDANCE WITH 38 C.F.R. § 20.1000 AND FOR
RESTORATION OF SERVICE CONNECTED DISABILITY
BENEFITS AT THE 100 PERCENT LEVEL AND ALL OTHER
ASSOCIATED BENEFITS NUNC PRO TUNC TO
NOVEMBER 14, 1990..........................................1
4. MOTION OF CLAIMANT-APPELLANT TO ADVANCE ON THE DOCKET HIS MOTION FOR VACATURE OF THE DECISION
OF THE BOARD DATED AUGUST 26, 2005, IN ACCORDANCE
WITH 38 C.F.R. § 20.902 ( c )....................................7
5. BRIEF IN SUPPORT OF MOTIONS TO VACATE AND ADVANCE
ON THE DOCKET............................................9
A. Facts relevant to the issues..................................9
B.Argument and authorities..................................20
i.The position of the VA Office of General Counsel, Office of Inspector General, and Secretary of the U.S. Department of Veterans Affairs regarding the adjudication of benefits fraud allegations........................................43
6.JURISDICTIONAL STATEMENT.................................
A.The Board takes jurisdiction of and reviews motions for vacature in accordance with 38 C.F.R. § 20.1000 ( a ).....................50
i
B.The Board takes jurisdiction of and reviews motions for
vacature when fraud has occurred. As demonstrated below,
the severance of the disability benefits of the veteran was
based upon materially false statements by employees of the
U.S. Department of Veterans Affairs as well as the withholding
of material and exculpatory evidence from the Veterans Benefits
Administration, the Board, the U.S. Court of Appeals for Veterans
Claims, and other Federal Courts. The Board may vacate a
decision based upon fraud under 38 C.F.R. § 20.1000(b).........51
7.STANDARD FOR REVIEW....................................52
A.The Board reviews motions for vacature under 38 C.F.R. §20.1000. Congress has chosen the preponderance standard
for fraud cases. See Grogan v. Garner, 498 U.S. 279 (1991)
at 286, 288........................................52
8. CONCLUSION.................................................54
9. WAIVER OF AOJ CONSIDERATION..............................56
10. CERTIFICATE OF SERVICE....................................57
11. APPENDIX...................................................58
ii
2. TABLE OF AUTHORITIES
CASES
Page
Abbott Labs. v. United States, 573 F.3d 1327 (Fed. Cir. 2009)...............40
Accardi v. Shaughnessy, 347 U.S. 260 (1954)...........................38
Almeida-Sanchez, 413 U.S. at 273-74, 37 L. Ed. 2d at 603, 93 S. Ct. at 2540....6
American Signature Inc., v. United States, 598 F.3d 816 (Fed. Cir. 2010).....28
Atkins v. Parker, 472 U.S. 115, 128 (1985)..............................39
Auer v. Robbins, 519 U.S. 452 (1997)...............................28, 40
Baltzer v. Lombard, 1:94-cv-01587...................................2, 5
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)...41, 43
Bivins v. Six Unknown Named Agents, 403 U.S. 388; 91 S. Ct. 1999; 29 L. Ed.619 (1971)........................................................48
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)...................40
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)................28
Brady v. Maryland, 373 U.S. 83 (1963)..............................3, 42
Brinegar v. United States, 338 U.S. 160, 180, 93 L. Ed. 1879, 69 S. Ct. 1302(Jackson, J., dissenting)..............................................6
Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994)..............17, 28, 38
Bulloch v. United States, 763 F.2d 1115 (10th Cir. 1985)...................41
iii
CASES
Page
Cafeteria Workers v. McElroy, 367 U.S. 886 (1961)......................38
Caminetti v. United States, 242 U.S. 470 (1917)......................32, 40
Caribbean Ispat Ltd. v. United States, 450 F.3d 1336 (Fed. Cir. 2006)........40
Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352
(Fed. Cir. 2005)....................................................28
City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447(2000)............................................................6
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 104 S. Ct. 2778 (1984)...................................24
Christensen v. Harris County, 529 U.S. 576 (2000).......................28
Conroy v. Aniskoff, 507 U.S. 511, 514 (1993)...........................19
Cook v. Principi, 318 F. 3d 1334 (Fed. Cir. 2002)...................21, 37, 38
Crawford v. Washington, 541 U.S. 36 (2004)............................21
Cushman v. Shinseki, 576 F.3d 1290 (Fed . Cir. 2009).................21, 38
Duncan v. Walker, 533 U.S. 167 (2001) at 174 “reluctant to treat statutory termsas surplusage in any setting”..........................................27
Ellis v. Dep’t of Veterans’ Affairs, No. CV-05-257-RHW, 2006 WL 224041
(E. D. Wash. 01/27/2006) (reverse Ellis doctrine).........................33
Federal Crop Insurance Corp. v. Merrill et al, 332 U.S. 380,
68 S.Ct. 1 (1947)...................................................38
Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002)......................24
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).....54
Giglio v. United States, 405 U.S. 150 (1972).............................42
iv
CASES
Page
Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed. 748 (2006)......28
Gose v. United States Postal Serv., 451 F.3d 831(Fed. Cir. 2006)............28
Grogan v. Garner, 498 U.S. 279 (1991) Congress has chosen the preponderance standard for fraud..................................................52
Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792)............18
Henderson v. Shinseki, 562 U.S. 428, 440, 131 S. Ct. 1197, 1205 (2011)......19
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)...........................34
In re R. Greg Bailey, 182 F.3d 860 (Fed. Cir. 1999).......................21
King v. St. Vincent's Hospital, 502 U.S. 215, 116 L. Ed. 2d 578,
112 S. Ct. 570 (1991)............................................28, 38
Kisor v. Wilkie 588 U.S. ____ June 29, 2019............................33
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).......42
Lamar v. United States, 241 U.S. 103 (1916) (113) plain meaning in
dictionaries....................................................32, 40
Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003)....................34
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,
47 L. Ed. 2d 18 (1976)..............................................38
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).............................................49
Morrissey v. Brewer, 408 U.S. 471 (1972)...............................38
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)......37, 50
v
CASES
Page
Ohio v. Roberts, 448 U.S. 56 (1980)...................................21
Orfanos v. HHS, 896 F. Supp. 23 (D.D.C. 1995)......................27, 31
Passaic Cty. Bar Ass'n v. Hughes, 401 U.S. 1003 (1971)...................19
Penhallow v. Doane's Adm'r, 3 U.S. 54, 79 (1795).......................19
People v. Lidster, 779 NE 2d 855 (IL Sup Ct 2002)....................2, 5, 6
Pierre v. West, 211 F.3d 1363 (Fed. Cir. 2000)...........................21
Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009)....................28
Richardson v. Perales, 402 U.S. 389 (1971).............................20
Roberts v. Shinseki, 23 Vet. App. 416 (2010) (en banc).................................
4, 11, 12, 15, 16, 20, 22, 29, 31, 32, 44, 49
Roberts v. Shinseki, 643 F.3d 1334 (Fed. Cir. 2011) (Cert. Den.).............49
Roberts v. Wilkie, 16-1219 (August 15, 2018)............................49
Roberts v. the United States of America, No. 08-788 Cert. Den. (U.S. Dec. 15,2008)............................................................49
Service v. Dulles, 354 U.S. 363 (1957).................................38
Shinseki v. Sanders, 556 U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009)........19
Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)......21
Solesbee v. Balkcom, 339 U.S. 9, 70 S. Ct. 457, 94 L. Ed. 604 (1950).........22
Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)....43
Suozzi v. Brown, 10 Vet. App. 307 (CAVC 1997)......................11, 36
vi
CASES
Page
Thurber v. Brown, 5 Vet. App. 119 (1993)..............................50
Thrasher v. McDonough, 22-0134 (Mar. 31, 2023).......................17
Trilles v. West, 13 Vet. App. 314 (2000) (en banc)........................32
Turner v. United States, 396 U.S. 398 (1970)............................21
Tutun v. United States, 270 U.S. 568 (1926).............................18
United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)....42
United States v. Georgia Thompson, 484 F.3d 877 (7th Cir. 2007)............37
United States v. Kienenberger, 168 F.3d 496 (8th Cir. 1998).................23
United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164 (2001)...........25
United States v. Public Utilities Commission of California,
345 U.S. 544 (1979)................................................33
United States v. Roberts, U.S. District Court, Eastern District of Wisconsin,
docket 05-CR-115.........................................15, 29, 47, 50
United States v. Roberts, 534 F.3d 560 (7th Cir. July 7 2008) (Cert. Denied
08-788, December 15, 2008) ...............................15, 29, 47, 50
United States v. Rutherford, 442 U.S. 544 (1979).........................33
United States v. Vaughn, 797 F2.d 1485 (9th Cir. 1986)....................22
United States v. Wunderlich, 342 U.S. 98, 101 (1951).........................1
Vitarelli v. Seaton, 359 U.S. 535 (1959)................................38
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985)..........20
West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991)..............32
Wolfe v. Wilkie, 32 Vet.App. 1 (2019) (order), rev'd sub nom. Wolfe v.McDonough, 28 F.4th 1348 (Fed. Cir. 2022)............................19
vii
STATUTES AND OTHER MATERIAL
Page
United States Constitution, Fourth Amendment......................2, 46, 49
United States Constitution, Fifth Amendment.....................2, 21, 38, 46
United States Constitution, Sixth Amendment........................2, 21, 46
United States Constitution, Eighth Amendment........................21, 46
Act of July 3, 1930, ch. 863, 46 Stat. 1016, established the VeteransAdministration. Congress consolidated the Bureau of Pensions,
the National Home for Disabled Volunteer Soldiers, and the
U.S. Veterans' Bureau into one agency..................................17
Invalid Pensions Act of 1792, Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792)(repealed in part and amended by Act of Feb. 28, 1793, ch. 17,
1 Stat. 324 (1793)).................................................17
Veterans' Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402,102 Stat. 4105, 4122 (1988)..........................................17
5 U.S.C. App., Public Law 95-452, As Amended Through P.L. 114-317, enacted
December 16, 2016, the Inspector General Act of 1978.....................48
5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301(2)(E), 5335(a)(B), 5372,
and 7521; the Administrative Procedures Act (APA).................19, 45, 50
5 U.S.C. § 552a The Privacy Act......................................49
18 U. S.C. § 1001 Statements ......................................4, 30
18 U. S.C. § 1341 Mail Fraud......................................30, 47
18 U. S.C. § 1343 Wire Fraud.....................................30, 37
18 U. S.C. § 2071 concealment, removal, or mutilation of documents..........5
31 U.S.C. §§ 3801-3812 Program fraud civil remedies Act..............Passim viii
STATUTES AND OTHER MATERIAL
Page
38 U. S.C. § 1110..................................................20
38 U.S.C. § 6102 Fraudulent acceptance of payments......................13
38 U.S.C. § 6103 Forfeiture for Fraud..................................13
38 U.S.C. § 6104 Forfeiture for treason .................................13
38 U.S.C. § 1151...................................................34
38 U.S.C. § 7254...................................................19
38 U.S.C. § 7261...................................................19
38 U.S.C. § 7292 ( d ) (1)............................................21
42 U.S.C. §§ 408 ( a )(1)-(8)..........................................23
42 U.S.C. §§ 1383a ( a )(1)-(4)........................................23
ix
REGULATIONS
Page
5 C.F.R. § 185 Program Fraud Civil Remedies...........................22
28 C.F.R. § 71 Implementation of the Provisions of the Program Fraud Civil Remedies Act of 1986...............................................22
31 C.F.R. § 16 Regulations Implementing the Program Fraud Civil Remedies Act of 1986..........................................................22
38 C.F.R. § 3.103(a) (2012) non-adversarial proceedings before VBA.........23
38 C.F.R. § 3.105(d)........................................................23
38 C.F.R. §§ 3.901-3.905....................................................13
38 C.F.R. § 3.957 (2004).........................................23, 24
38 C.F.R. § 14.561..................................10, 20, 25, 39, 40, 44
38 C.F.R. § 20.902 ( c ) ..............................................8
38 C.F.R. § 20.908 Thurber notice rule .................................50
38 C.F.R. § 20.1000 vacature.........................................52
38 C.F.R. § 20.1000 (a) vacature due process............................50
38 C.F.R. § 20.1000 (b) vacature fraud.................................51
38 C.F.R. §§ 42.1-42.47 (1988) Standards Implementing the Program Fraud Civil Remedies Act.................................................Passim
45 C.F.R. §§ 79.1-79.47 (April 8, 1988) Program Fraud Civil Remedies .......22
45 C.F.R. § 681 Program Fraud Civil Remedies Act Regulations.............22
45 C.F.R. § 2554 Program Fraud Civil Remedies Act Regulations............22
x
MISCELLANEOUS
Page
Adams, John, letter to Elbridge Gerry, December 5, 1777...................55
Black’s Law Dictionary, Sixth Ed. 1990, p 1406..........................35
RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (7th ed. 2015)........18
Maeva Marcus & Robert Teir, Hayburn's Case: A Misinterpretation of Precedent,1988 WIS. L. REV. 527.............................................18
United States Attorneys’ Bulletin, Vol. 52, No. 6,
November 2004, Social Security Fraud, 45 pages......................23, 45
United States House of Representatives, Committee on Veteran’s Affairs,
Subcommittee on Oversight and Investigations, June 30, 2010,
testimony of Matthew B. Tully, Esq....................................41
United States. Cong. Senate. Committee on the Judiciary. Overview of FalseClaims and Fraud Legislation. Hearing, Jun. 17, 1986. 99th Cong. 2nd sess.Washington: GPO, 1987. (pages 46-47, 46-50)............................44
SAVAGE, II DAVID G. ,GUIDE TO THE U.S. SUPREME COURT 872 (4th ed.2004)............................................................18
Sutherland Statutory Construction 46.01-.04 (5th ed. 1992) 2A Norman J. Singer,(plain-meaning rule).............................................32, 40
xi
11. APPENDIX
Page
Keith A. Roberts, VA Claim Number C 28 353 461
Index to Exhibits
Exhibit 1.Email from S. Kulevich to J. Imboden, continued VA OIG
interference with the adjudication of the Roberts benefits claims,
09-16-2015, 1 page..................................... 001
Exhibit 2.FOIA response VA OIG to Robert P. Walsh, 08-10-2018,
2 pages. ............................................. 004
Exhibit 3.Email from Renee Szybala to Debi Bevins re: Roberts case,
01-27-2005, 1 page......................................007
Exhibit 4.Letter, American Legion, Philip B. Wilkerson, to Renee Szybala,
Director of Compensation and Pension Service, 10-15-2004,
5 pages................................................009
Exhibit 5.Affidavit of Mr. Keith A. Roberts, 03-09-2007, 12 pages........015
Exhibit 6.Transcript, Federal Grand Jury testimony, Raymond P. Vasil, VAOIG, 09-13-2005, 8 pages.................................028
Exhibit 7.Transcript, Federal Grand Jury testimony, Raymond P. Vasil, VAOIG, 04-26-2005, 75 pages................................037
Exhibit 8.Sworn Affidavit of Commander Robert D. Hathaway, U.S. Navy,
Retired, with exhibits, 04-12-2019, 113 pages.................113
Exhibit 9.Motion and Brief Amicus Curia of Phillip Cushman, Roberts v.Wilkie, CAVC 16-1219, motion to intervene denied by order dated10-27-2017,57 pages.....................................225
Exhibit 10.38 C.F.R. §§ 42.1-42.47, 05-11-1988, 34 pages................282
xii
. . . Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times, his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a
ruthless master. It is more destructive of freedom than any of man's other inventions.
Justice William O. Douglas in United States v. Wunderlich, 342 U.S. 98, 101 (1951).
3.MOTION OF CLAIMANT-APPELLANT FOR VACATURE
OF THE DECISION OF THE BOARD DATED AUGUST 26,2005, IN ACCORDANCE WITH 38 C.F.R. § 20.1000 AND FOR
RESTORATION OF SERVICE CONNECTED DISABILITY
BENEFITS AT THE 100 PERCENT LEVEL AND ALL
OTHER ASSOCIATED BENEFITS NUNC PRO TUNC TO
NOVEMBER 14, 1990.
The Claimant-Appellant, Keith Albert Roberts, moves the Board to vacate the Board’s decision in docket 03-04 265 dated August 26, 2005. That decision affirmed the severance of his 100 percent rating for service connected disability benefits for Post Traumatic Stress Disorder (PTSD) based upon fraudulent and unsubstantiated allegations against Mr. Roberts made by employees of the Va Office of Inspector General. Those same fraudulent statements were then repeated on two occasions to a Federal Grand Jury. Using the overpayment amount created by the unlawful severance/reduction of compensation benefits by the VA Regional Office (VARO) as damages an indictment was procured which resulted in the wrongful criminal prosecution and conviction of Mr. Roberts for federal wire fraud. As a result he was incarcerated for 1,200 days.
This motion implicates the 4th, 5th, 6th, and 8th Amendments to the United States Constitution.
1
The affidavit of Commander Robert Don Hathaway, U.S. Navy, Retired,which is available in the benefits claims file and is also submitted with this motion demonstrates that the severance of the service connected disability benefits of Keith A. Roberts was procured by fraud on the part of employees of the U.S.Department of Veterans Affairs.
The “fraud” alleged in the severance of the disability benefits for PTSD was based on the false narrative developed by Raymond Vasil and other VAemployees1. Vasil alleged that Mr. Roberts was not on duty on February 4, 1969,when Gary Holland was injured and died in an aircraft maintenance incident at Naval Air Facility, Naples, Italy. Vasil issued a report in which he misquoted Navy eye witnesses. He also “cherry picked” documents and witnesses. It appears that Vasil contacted several Navy veterans that knew Mr. Roberts and that confirmed that he was on duty that day. Vasil appears to have intimidated those individuals and silenced them.
The record suggests that Mr. Vasil did obtain a copy of the final U.S. Navy Safety Report on the fatal February 4, 1969, incident. Mr. Roberts provided an affidavit for that report. Vasil incorporated documents from the less comprehensive preliminary Navy report as part of his VA fraud investigation. Mr.
1 Raymond P. Vasil was employed by the VA Office of Inspector General, Hines,
IL., office. He was tasked with investigation the complaint of Mr. Roberts that
documents to include hearing transcripts were being alter by VARO employees.
Vasil had been involved in misconduct at the Lombard, IL, police department. See
People v. Lidster, 779 NE 2d 855 (IL Sup Ct 2002); and Baltzer v. Lombard, 1:94-
cv-01587.
2
Roberts requested that Mr. Vasil contact Chief Hill, the non-commissioned officer in charge of the transient line unit, and Commander Paul Solomon, one of the officers in charge to verify his participation in the events of February 4, 1969. Both of those men were alive and well 20 years ago. The record does not reflect that Mr. Vasil ever did that. This conduct is a violation under Brady v. Maryland,373 U.S. 83 (1963).
During his deposition Commander Robert D. Hathaway, U.S.N., Retired,was emphatic that he had never been contacted by any government official regarding the Keith A. Roberts case. He explained that as aviators several officers shared additional duties such as supervising the transient line operation as they were often away flying. At the time of the fatal incident Solomon and Hathaway shared in the duty of officer in charge of the transient line at Naples. Paul Solomon also made a career of the Navy and retired with the rank of commander. Mr. Vasil could have easily contacted him. Mr. Roberts spoke with the son of Commander Solomon who stated that to his knowledge his late father had never been contacted about the VA investigation and allegation. In his deposition Commander Hathaway was emphatic that Mr. Roberts was on duty on February 4,1969. Commander Hathaway also explained the technical and factual aspects of the negligence and unlawful conduct of some of the Navy retirees that testified against Mr. Roberts in his criminal trial.
The severance of the service connected disability benefits of Keith A.Roberts, his criminal indictment and conviction were all obtained through perjury,
3
secreting evidence and blatant misrepresentations of fact and law by Mr. Raymond P. Vasil, and other employees of the U.S. Department of Veterans Affairs (VA).
A disgraced law enforcement officer, Vasil made material misrepresentations of fact to employees of the Veterans Benefits Administration(VBA) and to Veterans Health Administration (VHA) in order to obtain a negative mental health compensation and pension examination report. A report based on the assumption that Mr. Vasil was correct when he informed VBA and VHA employees that Mr. Roberts was not on duty in Naples on February 4, 1969. Seethe dissent of Judge Hagel in Roberts v. Shinseki, 23 Vet. App. 416 (2010) (enbanc). Mr. Vasil perjured himself twice before federal grand juries when he stated that the VA adjudication of the severance of PTSD benefits was completed when he knew or should have known that the appeal was pending before the Board in docket 03-04 265. Those statements are unlawful. See Title 18 U.S.C. § 1001.
Mr. Vasil had also unlawfully seized the original paper VA benefits claims file from the RO at the earliest stages of his investigation. At that time he had noprobable cause to believe that Mr. Roberts had committed a crime. And no criminal case had been opened so there was not competent order of a judge or magistrate authorizing him to seize the claims file.
At the hearing before the Board on June 13, 2005, Veterans Law Judge(VLJ) Barry F. Bohan refused to permit the American Legion representatives or Mr. Roberts to examine the claims file. That is because VLJ Bohan was aware that the claims file transferred from the Milwaukee Regional Office (RO) to the Board
4
for the hearing was a very incomplete and legally incompetent photo copy. Only one side of the pages had been copied, such that hundreds of critical pages were missing. When the case was appealed to the U.S. Court of Appeals for Veterans Claims the record of appeal was supplemented with over three hundred pages of critical documents and hundreds of pages were still missing. The spoilation of the benefits claims file was contrary to Title 18 U.S.C. § 2071. During the first oral argument in the case at the CAVC then Chief Judge Greene made note of the problem with the record from the bench.
Mr. Vasil was criticized by the Illinois Supreme Court in relation to his misconduct as an officer for the Lombard, Illinois, police department. See Peoplev. Lidster, 779 NE 2d 855 (IL Sup Ct 2002); and Baltzer v. Lombard, 1:94-cv-01587. Mr. Vasil was employed by the U.S. Department of Veterans Affairs Office of Inspector General shortly after his separation from the Lombard Police Department. Mr. Keith A. Roberts and his family appear to be some of his earliest victims as a VA employee.
The Illinois Supreme Court noted in Lidster that:
“ ”As the Supreme Court observed in Almeida-Sanchez v. United States, 413 U.S.266, 37 L. Ed. 2d 596, 93 S. Ct. 2535 (1973):
"The needs of law enforcement stand in constant tension with the Constitution's
protections of the individual against certain exercises of official power. It is
precisely the predictability of these pressures that counsels a resolute loyalty to
constitutional safeguards. It is well to recall the words of Mr. Justice Jackson,soon after his return from the Nuremberg Trials:
5
'These [fourth amendment rights], I protest, are not mere second-class rights but
belong in the catalog of indispensable freedoms. Among deprivations of rights,none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.' Brinegarv. United States, 338 U.S. 160, 180, 93 L. Ed. 1879, 69 S. Ct. 1302 (Jackson, J.,dissenting)." Almeida-Sanchez, 413 U.S. at 273-74, 37 L. Ed. 2d at 603, 93 S. Ct.at 2540.
The right of an individual to be free from unreasonable searches and seizures is an
indispensable freedom, not a mere luxury. It cannot give way in the face of a
temporary need for the police to obtain information regarding the identity of the
motorist at issue. As the protector of the constitutional rights of all citizens of this
state, this court is commanded to draw a "line at roadblocks designed primarily to
serve the general interest in crime control." City of Indianapolis v.
Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000). Without such a line, the fourth amendment will do little to prevent intrusive searches and seizures from becoming a routine part of American life. Edmond, 531 U.S. at 42, 148 L.Ed. 2d at 344, 121 S. Ct. at 454. The judgment of the appellate court is affirmed.”“
Mr. Roberts moves the Board to restore his service connected disability benefits nunc pro tunc to November 14, 1990, forthwith.
In support of this motion Mr. Roberts files the attached appendix. He also incorporates by reference all evidence currently contained in his benefits claims file.
/s/ Robert P. Walsh Dated: June 25, 2023
Robert P. Walsh-Michigan Bar P-42833
Attorney for Claimant-Appellant
Keith A. Roberts
Law Office of Robert P. Walsh
2 Michigan Avenue West, Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9592
E-mail: robert@robertpwalsh.com
6
4. MOTION OF CLAIMANT-APPELLANT TO ADVANCE ON THEDOCKET HIS MOTION FOR VACATURE OF THE DECISION
OF THE BOARD DATED AUGUST 26, 2005, IN ACCORDANCE
WITH 38 C.F.R. § 20.902 ( c ).
Keith A. Roberts moves the Board to advance this motion to vacate on the docket. The motion to vacate should be advanced on the docket as it involves Interpretation of law of general application which effects other pending and future adjudications of allegations of benefits claims fraud.
In addition this motion should be advanced on the docket as Mr. Roberts has serious health issues to include a recent stroke and heart attack which are documented by medical records associated with his claims file.
Further, this dispute has evaded resolution for 20 years and the Board should move forward expeditiously in this matter in the interest of justice.
/s/ Robert P. Walsh Dated: June 25, 2023
Robert P. Walsh-Michigan Bar P-42833
Attorney for Claimant-Appellant
Keith A. Roberts
Law Office of Robert P. Walsh
2 Michigan Avenue West, Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9592
E-mail: robert@robertpwalsh.com
7
5.BRIEF IN SUPPORT OF MOTIONS TO VACATE AND
ADVANCE ON THE DOCKET
A.FACTS RELEVANT TO THE ISSUES
In November of 2003 Mr. Roberts had contacted the VA OIG in Washington, D.C. and alleged that documents were not being placed in his claims file or that documents were being removed. He also complained about the failure of the transcripts of his decision review officer hearings to accurately reflect his testimony. The Milwaukee Regional Office would later be named as one of the participants in the VA “Shredder Gate” scandal.
After years of adjudication Mr. Roberts had been awarded service connection for Post Traumatic Stress Disorder and was granted total disability based upon Individual unemployability (TDIU).
On July 8, 2004, the Chicago office of the VA Office of Inspector General issued an incomplete and misleading report of investigation alleging that Mr.Roberts was not on duty at Naval Air Facility, Naples, Italy, on February 4, 1969. 2
2 The Vasil report does not contain sworn affidavits of witnesses interviewed by
VA OIG for the report. It contains memoranda of contact prepared by Mr. Vasil.
The report was rejected by the federal district court when offered as an exhibit in
the criminal trial. The witnesses interviewed by VA OIG did not testify that Mr.
Roberts was not present on February 4, 1969. They testified under oath that they
did not know Roberts, or that there were too many people present at the scene, or
that they were in offices or in the aircraft and had no line of sight to where Roberts
was located. Mr. Vasil did not contact any of the sailors that actually worked with
Roberts on the transient line unit, to include the officer in charge, Commander
Hathaway. Because no hearing was ever conducted under 38 C.F.R. § 42.1 Mr.
Vasil and his report have never been subjected to the rigors of voire dire or direct
and cross examination. There has never been a meaningful opportunity to present
facts and documents which contradict the VA false narrative of the death of Gary
Holland.
8
The report concluded that since Mr. Roberts was not on duty one of the stressors he claimed in support of his claim for service connection for Post Traumatic Stress Disorder which was the death of Gary Holland was fraudulent
Commander Robert D. Hathaway, USN, Retired, was one of the officers in charge of the Transient Line operation in Naples in February of 1969 as confirmed by his sworn affidavit dated April 12, 2019.
Mr. Roberts was on duty. Roberts did participate in the efforts to rescue Gary Holland when he was trapped and died due to the collapse of an aircraft front main landing gear. Commander Hathaway provides his direct and personal knowledge of the events of February 4, 1969. He also describes the events leading up to the fatal incident as well as the actions to deflect responsibility and cover up the true nature of the fatal incident. Commander Hathaway is a graduate of theU.S. Navy Safety Officer course and a highly qualified U.S. Navy aviator that flew both rotary and fixed wing aircraft.
The IG report provided the false narrative which formed the basis of the actions by the VA Regional Office, Milwaukee, Wisconsin, to sever the service connected disability and Chapter 35 benefits of Mr. Roberts based on fraud.
The Milwaukee Regional Office issued a Compensation and Pension examinquiry on October 5, 2004. This was a request for an examination to determine if Mr. Roberts had any mental illness related to military service, and to review his PTSD. It instructed the examiner to assume that Mr. Roberts was not present when Gary Holland was killed.
9
A report of examination was issued dated November 5, 2004. Bertrand Berger, Ph.D., was the author and Jon Lehrmann, M.D., was the cosigner. The report was based upon a records review only. The report may be based upon anactual review of the IG report which had been placed in the claims file. Mr.Roberts was not seen personally and was not contacted telephonically during the preparation of this C and P report. This is the only report during the period relevant to this request for vacature that did not diagnose Mr. Roberts with severe PTSD related to his military service. See the dissent of Judge Hagel in Roberts v.Shinseki, 23 Vet. App. 416 (2010) (en banc). Chief Judge Greene, along with Judges Hagel and Schoelen made up the three judge panel in the first oral argument at the CAVC.
The IG report along with the flawed C and P report form the only basis for the severance now under review. These reports were not obtained by Mr. Roberts until after the Board had issued the 2005 decision which is the subject of this motion. They were first obtained in criminal discovery and then later in the Record on Appeal (ROA) at the U.S. Court of Appeals for Veterans Claims(CAVC) in 05-2545, Roberts v. Shinseki, 23 Vet. App. 416 (2010).
Mr. Roberts requested a complete copy of his benefits claims file. He also requested copies of the IG report and the C and P report that it spawned. Those requests were denied or delayed until after his criminal conviction.
During the adjudication of this case at the Board in 2005 the original benefits claims file was in the possession of the VA IG where it had been since
10
December 12, 2003. The Board was working from a grossly incomplete photocopy. The Record on Appeal (ROA) in 05-2545 (Roberts v. Shinseki) was supplemented three times under CAVC Rule 10. The copy of the benefits claims file first obtained by Mr. Roberts had over one thousand pages of documents missing. Some documents were incomplete. Two sided documents were only copied on one side. Some critical VA letters and decisions were totally missing from the file and had to be resubmitted by Mr. Roberts from the copies he had received in the mail when the letters or decisions were originally sent to him.
The Regional Office issued a proposal to sever on August 18, 2004. Ar ating decision severing service connection and Chapter 35 benefits was issued on November 16, 2004. That decision provided in pertinent part that:
“In your statement to Congressman Mark Green, received at our office on10/15/04, you noted, in essence, that the proposal to sever service connection for PTSD was a violation of VA regulations. You provided an excerpt from an unidentified BVA or CAVC decision, which referred to Suoz[z]i v. Brown, 10Vet.App. 307 (1997) (sic) stating that “an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal
exposure. " Your statement and the accompanying excerpt fail to provide any evidence of probative value regarding the proposal to sever service
connection based on fraud. While evidence need not completely verify that
11
a stressful event occurred, other evidence showing that the event did not occur cannot be ignored.
As the due process period on the proposal to sever service connection has expired, a final decision is being made.
38 CFR 3.9013 defines fraud as "An act committed when a person knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to,arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher or paper,concerning any claim for benefits under any of the laws administered by the
Department of Veterans Affairs ( except laws related to insurance benefits)." '
Your testimony, given at VA Medical Centers and to the Special Agent of the Inspector General (OIG) Department of Veterans Affairs Inspector General Office of Investigations is found to be fraudulent. As detailed in the Rating Decision dated 08/16/04, you provided testimony regarding the witnessing of the death of a''buddy'' during military service, and regarding your involvement in the rescue operations. The investigation conducted by the OIG provides evidence that your testimony was fraudulent. Although you were stationed at the same facility as the
3 38 C.F.R. § 3.901 and the related regulations §§ 3.900-3.905 are not for
application in this case. They are for forfeiture cases, and this is a severance case.
See 38 U.S.C. §§ 6103, 6104. Forfeiture may not be imposed on a U.S. citizen
residing in the United States or U.S. Territories. Because of the long arm
jurisdiction of the United States Federal Courts it may be concluded that forfeiture
of benefits can never be imposed on a U.S. citizen under these statutes and
regulations.
12
deceased airman, you are not found to have been present at the site or time of the accidental injury, nor are you found to have been involved in the rescue operations.
The diagnosis of PTSD was based on your testimony of witnessing the accident inquestion, and assisting in rescue operations, which is found to be fraudulent.” Rating decision at page 3.4
OIG agent Vasil testified before a federal grand jury on April 26, 2005, in Milwaukee, Wisconsin. He misstated the contents of the VA C and P report of November 5, 2004. He also misrepresented the statements and testimony of Mr.Roberts and several Navy witnesses in his testimony.
Keith A. Roberts was indicted on April 26, 2005, for mail fraud. Apparently the U.S. Postal Inspection Service took exception to this indictment. They were not involved in the investigation. It is important to note that only the VA OIG had any role in the investigation and prosecution of Mr. Roberts for fraud. The Federal Bureau of Investigation, the Secret Service, and the Postal Inspection Service were never involved in this case contrary to the mandates of the then current U.S.Department of Justice manual.
A notice of disagreement was filed and a statement of the Case issued on February 23, 2005. VA form 9 was filed on March 9, 2005. A hearing was held in Washington, D.C. on June 13, 2005. Since Mr. Roberts had already been indicted he required leave of the federal district court to travel outside of Wisconsin.
4 As indicated above and in other pleadings, Mr. Roberts was never granted access
to the OIG, report, the C and P reports, or his claims file prior to the expiration of
the “due process period”.
13
In the August 25, 2005, decision the Board upheld the action of the Milwaukee Regional Office which severed the service connected disability benefits of Mr. Roberts based upon the fraudulent and adversarial conduct of employees of the U.S. Department of Veterans Affairs, Veterans Benefits Administration and Office of Inspector General.
The United States Attorney informed the Federal District Court and the criminal jury on numerous occasions that the VA decision regarding benefits fraud was final when there would not be a final agency decision for many years after
Mr. Roberts was convicted. See United States v. Roberts, U.S. District Court,Eastern District of Wisconsin, docket 05-CR-115; United States v. Roberts, 534F.3d 560 (7th Cir. July 7, 2008) (Cert. Denied 08-788, December 15, 2008).
Mr. Roberts was convicted of wire fraud in federal court and sentenced on March 2, 2007, to 48 months in federal prison and ordered to pay $ 355,000 in restitution.
On April 23, 2010, after holding the appeal hostage in chambers for over four years, the U.S. Court of Appeals for Veterans Claims issued a decision in the appeal of the August 25, 2005, Board decision. Roberts v. Shinseki, supra.
On December 18, 2018, the Board issued a decision granting an effective date of November 14, 1990, for mental disability.
On March 22, 2019, the Board issued an order affirming the decision which withheld benefits for the period of March 2, 2007, until March 18, 2010, due to
14
incarceration. Upon granting of this motion that Board decision will be rendered void abinitio.
On July 13, 2020, VA form 20-0995 was filed along with the affidavit of Commander Robert D. Hathaway alleging fraud and misconduct on the part of agency employees. See (Appx. Exh. 8, pp 113-224).
On March 2, 2022, Mr. Roberts filed form 20-0995 along with the affidavit of Commander Robert D. Hathaway which confirms that Mr. Roberts was present and participated in the effort to rescue Gary M. Holland on February 4, 1969, in Naples, Italy.
On June 2, 2022, a rating decision was issued which asserted that the Veterans Benefits Administration lacks jurisdiction to review the November 16,2004, rating decision which was based on fraudulent information because of the finality of the August 25, 2005, Board decision. This motion for vacature is in response to that position taken by the Veterans Benefits Administration.
Mr. Roberts was wrongfully incarcerated for 1,200 days for VA benefits fraud. He was denied due process in that, inter alia, his claims and appeals were adjudicated using a partial photocopy of his paper benefits claims file.5
In accordance with the remand ordered in Roberts v. Shinseki, 23 Vet.App.416 (2010), Mr. Roberts is now receiving TDIU effective December 9, 2018, based
5 As creator of the benefits claims file the Veterans Benefits Administration is the
custodian of that record under the Administrative Procedures Act. Rather than
provide the original documents a certified copy should have been provided to the
VA OIG. It is clearly evident that employees of the VA OIG removed hundreds of
pages from the record prior to the BVA hearing and decision.
15
on a 70 percent combined rating. He was granted benefits at the 30 percent levelfrom July 16, 1992 to December 9, 2018.
The debt created by the VA Debt Management Center seems to change on aweekly basis. A complete audit of the VA declared debt and offsets must beconducted.
Judge Greenberg recently provided some background on the history of the adjudication of veterans benefits claims in Thrasher v. McDonough, 22-0134. Itseems to be appropriate to repeat it here in the context of the adjudication of fraud allegations in disability cases. Judge Greenberg wrote:
“ The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans' Bureau into one agency. Act of July 3, 1930, ch.863, 46 Stat. 1016. This Court was created with the enactment of the Veterans' Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat.4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations,
and decisions lived in "splendid isolation," generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent withcongressional intent as old as the Republic. Congress first sought judicialassistance in affording veterans relief when it adopted the Invalid Pensions Act of1792, which provided "for the settlement of the claims of widows and orphans . . .and to regulate the claims to invalid pensions," for those injured during
the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792)(repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)).The act, though magnanimous, curtailed the power of the judiciary, by providingthe Secretary of War the ability to withhold favorable determinations to claimantsby circuit courts if the Secretary believed that the circuit court had erred in favor ofthe soldier based on "suspected imposition or mistake." See id.
16
Chief Justice John Jay62 wrote a letter73 to President George Washington onbehalf of the Circuit Court for the District of New York84 acknowledging that "theobjects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress." See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L.Ed. 436 (1792). Jay also noted that "judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature." Id.
6 2 John Jay served as the first Secretary of State of the United States on an interim
basis. II DAVID G. SAVAGE, GUIDE TO THE U.S. SUPREME COURT 872
(4th ed. 2004). Although a large contributor to early U.S. foreign policy,
Jay turned down the opportunity to assume this position full time. Id. at 872, 916.
Instead, he accepted a nomination from President Washington to become the first
Chief Justice of the Supreme Court on the day the position was created by the
Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second
Governor of New York. Id. He was nominated to become Chief Justice of the
Supreme Court again in December 1800, but he declined the appointment.
73 The Supreme Court never decided Hayburn's Case. See 2 U.S. (2 Dall.) 409,
409 (1792). The case was held over under advisement until the Court's next
session and Congress adopted the Invalid Pensions Act of 1793, which required the
Secretary of War, in conjunction with the Attorney General, to "take such measures
as may be necessary to obtain an adjudication of the Supreme Court of the United
States." Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793). Hayburn's Case has often
been cited as an example of judicial restraint, see, e.g., Tutun v. United States, 270
U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued
persuasively to the contrary. See Maeva Marcus & Robert Teir, Hayburn's Case: A
Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay's letter
included by Dallas, the Court Reporter, in a note accompanying the decision to
hold the matter under advisement, is nothing more than an advisory opinion that
compelled Congress to change the law in order to make the judiciary the final
voice on the review of a Revolutionary War veteran's right to pension benefits. See
Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n.
8 4 At this time, each Justice of the Supreme Court also served on circuit courts, a
practice known as circuit riding. See RICHARD H. FALLON, JR., ET AL., HART
AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM (7th ed. 2015).
17
This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court's decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009) (Souter, J., dissenting) ("Given Congress's understandable decision to place thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions"); see also Henderson v. Shinseki, 562 U.S.
428, 440, 131 S. Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in "the singular characteristics of the review scheme that Congress created for the adjudication of veterans' benefits claims," and emphasizing that the provision "was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran"). In the words of Justice Paterson, "[j]udges may die, and courts be at an end; but justice still lives, and,though she may sleep for a while, will eventually awake, and must be satisfied."Penhallow v. Doane's Adm'r, 3 U.S. 54, 79 (1795).
Justice Alito59 observed in Henderson v. Shinseki that our Court's scope of review is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. at 432 n.2 (2011); see 38U.S.C. § 7261. "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254.The statutory command that a single judge 610 may issue a binding decision is"unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff, 507 U.S. 511,514 (1993). The Court's practice of treating panel decisions as "precedential" is unnecessary, particularly since the Court's adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App. 1 (2019) (order), rev'd sub nom. Wolfe v.
9 5 Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE
UNITED STATES, https://www.supremecourt.gov/about/biographies.aspx (last
visited Mar. 4, 2020). He began his career as a law clerk, then became assistant
U.S. attorney for the district of New Jersey before assuming multiple positions at
the Department of Justice. Id. He then became a U.S. attorney for the district of
New Jersey. Id. Before his nomination for the Supreme Court, he spent 16 years
as a judge on the U.S. Court of Appeals for the Third Circuit. Id. In 2005,
President George W. Bush chose Alito to replace retiring Supreme Court Justice
Sandra Day O'Connor. Id.
10 6 From 1989 to 1993, West (the publisher of this Court's decisions) published
this Court's single-judge decisions in tables in hard-bound volumes of West's
Veterans Appeals Reporter. Since 1993, West has published this
Court's single-judge decisions electronically only. I believe the Court should
publish all its decisions in print form. See, e.g., Passaic Cty. Bar Ass'n v. Hughes,
401 U.S. 1003 (1971).
18
McDonough, 28 F.4th 1348 (Fed. Cir. 2022). We cite these decisions from our Court merely for their guidance and persuasive value.”
What is sadly remarkable is that the U.S. Court of Appeals for Veterans Claims (the Court) has been in operation during most of the period in which this systemic abuse of authority and circumvention of the due process procedures mandated by Congress has been conducted by the U.S. Department of Veterans Affairs. While not fully briefed before the en banc Court in Roberts v. Shinseki,Id., the dissent of Judges Hagel and Schoelen makes it clear that the real issue in this case was reasonably raised in the record. Sadly the Court chose to make policy rather than follow the law. In the intervening years this VA administrative reign of terror has continued. The recent death of Justin Perez-Gorda in federal pre-trial detention while falsely accused of veterans benefits fraud only serves tocast an even more unfavorable light on the actions of the Board and Court in thiscase.
B.Argument and authorities.
Free Standing Constitutional Claims.
The Supreme Court has strongly implied that certain due process protections are applicable to the adjudicative administrative proceedings associated with social security disability claim hearings. Richardson v. Perales, 402 U.S. 389, 401-02(1971). VA benefits proceedings involve similar interests. Walters v. Nat’l Ass’nof Radiation Survivors, 473 U.S. 305, 333 ( 1985); 38 U.S.C. § 1110.
19
Mr. Roberts was denied a full and fair hearing regarding the benefits fraud allegations. He was deprived of his liberty (incarceration) and property (benefits)without due process of law. Veteran’s disability benefits are nondiscretionary,statutorily mandated benefits and Mr. Roberts is entitled to procedural due process. See Cook v. Principi, 318 F.3d 1334, 1350,1352 (Fed. Cir. 2002); Cushman v.Shinseki, 576 F.3d 1290 ( Fed . Cir. 2009); and In re R. Greg Bailey, 182 F.3d860, 869-70 (Fed. Cir. 1999), 38 U.S.C. § 7292 ( d ) (1), id.
He was clearly denied procedural due process under the Fifth Amendment to the Constitution. Cf. Pierre v. West, 211 F.3d 1363, 1367 (Fed. Cir. 2000).
The ultra vires fraud adjudications being conducted by the Secretary are express and direct violations of the due process clause of the Fifth Amendment and the right to notice and an opportunity to challenge evidence and charges under the Sixth Amendment to the United States Constitution. See Turner v. United States,396 U.S. 398 (1970) (notice), and Ohio v. Roberts, 448 U.S. 56 (1980); Crawfordv. Washington, 541 U.S. 36 (2004) (confrontation).
In evaluating due process claims, an inquiry must be made as to whether the practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v.Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Asstated by Justice Frankfurter, due process:
20
embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history.Due process is that which comports with the deepest notions of what is fair and right and just.
Solesbee v. Balkcom, 339 U.S. 9, 16, 70 S. Ct. 457, 461, 94 L. Ed. 604 (1950).
The Secretary has Failed to Comply with the Program Fraud Civil Remedies Act of 1986.
The VA has failed to comply with the PFCRA and 38 C.F.R. § 3.103
procedural due process and appellant rights, enacted to ensure due process and uniformity in benefits fraud cases. Mr. Roberts never received adequate notice ora fair opportunity to review and challenge the allegations and evidence against him. The VARO, BVA, and CAVC elevated an incomplete and misleading VAOIG report to the status of unassailable fact. Mr. Roberts was presumed guilty bythe VA OIG and then denied a fair hearing. The trial judge and U.S. Attorney distorted the law of veterans benefits such that even after the favorable testimony by VA employee Barbra Nehls the jury returned a guilty verdict.
The Program Fraud Civil Remedies Act of 1986.
The CAVC en banc opinion in Roberts, supra, gives a cursory nod to the controlling law, the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31U.S.C. §§ 3801-3812 and 38 C.F.R. §§ 42.1-42.47 (1988). Roberts Id., at 424.
Congress said the PFCRA was “(2) to provide due process protections to all persons who are subject to the administrative adjudication of false, fictitious, or fraudulent claims or statements.” PL 99-509 (HR 5300) October 21, 1986.
21
The Social Security Benefits Fraud Program.
The PFCRA regulations for the VA and Social Security Administration(SSA) are almost identical. See 45 C.F.R. 79.1-79.47, April 8, 1988. The SSA has a vigorous fraud program. In 2008 SSA received 121,020 fraud allegations, 9,468cases were opened, 10,068 were closed, and 1,555 arrests were made. Information or Indictments totaled 1,225. Of 2006 criminal prosecutions, 320 resulted in pre-trial diversions, and 1,686 were sentenced. There were 432 civil cases.
The VA has failed to adopt a Title 38 equivalent of 42 U.S.C. §§ 408 ( a)(1)-(8), the felony fraud provisions for Title II (Social Security benefits). See United States v. Kienenberger, 168 F.3d 496 (8th Cir. 1998). Or of 42 U.S.C. §§1383a ( a )(1)-(4), for Title XVI (Supplemental Security Income for the Aged,Blind and Disabled). See United States v. Vaughn, 797 F2.d 1485, 1490 (9th Cir.1986) (propensity to influence agency action). See United States Attorney Bulletin,Vol. 52, No. 6, November 2004.
The VA responded to a Freedom of Information Act request regarding fiscal years 2004-2008. The VA OIG conducted 2,523 benefits fraud investigations,with 589 convictions while the VA OGC opened no files concerning benefits fraud. (Appx. Exh. 2, pp 004-5).
The review by the CAVC of the VA fraud adjudication process in this caseis pointless. The application of 38 C.F.R. § § 3.103, 3.105(d), and 3.957 insevering the benefits of Mr. Roberts was contrary to law. Since the PFCRAbecame law the only valid application of 38 C.F.R. § 3.105(d) in a VA benefits
22
fraud case is to implement the decision of the ALJ or District Court if it is appealed.
For over twenty years the VA has conducted illegal benefits fraud adjudications. The present procedure places VA OIG reports beyond meaningful review, and uses a constitutionally impermissible presumption of guilt. This “Gyro Gearloose” concoction has resulted in this wrongful termination of VA benefits and incarceration of Mr. Roberts and the death of Mr. Perez-Gorda, another innocent veteran.
The Board stated: “Moreover, a definition of fraud as applied to § 3.957 is specifically provided in the VA regulations. There is no indication from the regulations or elsewhere that the determination of fraud is somehow beyond the province of VA adjudicators.” In fact VA has yet to promulgate a final fraud definition and does not have a statute in title 38 to address benefits fraud properly. Nowhere except the Program Fraud Civil Remedies Act of 1986.
The Secretary May Not “Opt Out” of the PFCRA.
The refusal of the VA to follow the PFCRA is inexplicable. The language in the regulations which were promulgated to implement the PFCRA are unambiguous. See 38 C.F.R. §§ 42.1-42.47. There is no basis for deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,844, 104 S. Ct. 2778, 2782 (1984). The Secretary has abused his discretion, as did the CAVC in failing to intervene. In Gallegos v. Principi, 283 F.3d 1309 (Fed.
23
Cir. 2002), the Federal Circuit quoted United States v. Mead Corp., 533 U.S. 218,121 S. Ct. 2164, 2171 (2001):
“The Supreme Court chose to emphasize that Chevron deference applies unless the statute speaks ‘directly’ “to the precise question.” Under Chevron deference, “any ensuing agency regulation is binding in the Courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” Id. at2171.
The PFCRA, 31 U.S.C. § 3801, defines relevant terms as follows:
“(3) “claim” means any request, demand, or submission -
(A) made to an authority for * * *( money representing * **benefits);
* * *
(4) “investigating official” * * * is the Inspector General of that authority * **;
(7) “presiding officer” means -
(A) * * *subchapter II of chapter 5 of title 5 apply, an administrative law judge appointed in the authority pursuant to section3105 of such title or detailed to the authority pursuant to section 3344of such title; * * *
(8) “reviewing official” means * * * -
(A) who is designated by the authority head to make the determination required under section 3803(a)(2) of this title;
* * * basic pay is not less than * * *grade GS-16 under the General Schedule;”
38 C.F.R. § 42.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, * * * (October 21, 1986), to be codified at 31U.S.C. 3801-3812. * * *
24
38 C.F.R. § 42.2 Definitions.
* * *
ALJ means an Administrative Law Judge in the Department of Veterans Affairs pursuant to 5 U.S.C. 3105 or detailed * * * pursuant to 5 U.S.C. 3344.
Benefit means, * * *anything of value * * *
Claim means any request, demand, or submission --
(a) Made to the Department of Veterans Affairs for * * *( money representing grants, loans, insurance, or benefits);
* * *
Investigating official means the Inspector General of the Department of Veterans Affairs or an officer or employee * * * not less than * **grade GS-16 under the General Schedule.
* * * Reviewing official means the General Counsel of the Department of VeteransAffairs or designee
* * *
38 C.F.R. § 42.5 Review by the reviewing official.
(a) The report of the investigating official will be examined by the reviewing official to determine if there is adequate evidence to believe a person is liable under § 42.3 of this part * * *
(b) If * * * the reviewing official determines that there is adequate evidence to believe that a person is liable under § 42.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official's intention to issue a complaint under §42.7 of this part.
(c) The notice shall include–
* * *
(1) A statement of the reviewing official's reasons for issuing acomplaint;
(2) A statement specifying the evidence that supports the allegations of liability;
* * *
25
(4) An estimate of the amount of money or the value of * * *services,or other benefits requested or demanded in violation of § 42.3 of this part;
* * *
(d) If the reviewing official finds that there is not adequate evidence that a person is liable, the reviewing official will inform the department or office of the Department of Veterans Affairs concerned with the claim or statement and the investigating official.
* * *
38 C.F.R. § 42.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under § 42.7 of this part only if–
* * *
(2) In the case of allegations of liability under § 42.3 of this part with respect to a claim, the reviewing official determines that, with respect to the claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph
(b) of this section), the amount of money or the value of property or services, or both, demanded or requested in violation of § 42.3(a) [of]sic this part does not exceed
$ 150,000. 11
(b) For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract)that are submitted simultaneously as part of a single request, demand,or submission.
(c) Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person's claims that are unrelated or were not submitted simultaneously,regardless of the amount of money, or the value of property or services, demanded or requested. (Emphasis added).
* * *
Duncan v. Walker, 533 U.S. 167 (2001) at 174 where the Court indicated
that it is “reluctant to treat statutory terms as surplusage in any setting”
11 $150,000 in 1986 adjusts to $258,531 in 2004 and $ 416, 232.21 today using the
CPI inflation calculator of the U.S. Department of Labor, Bureau of Labor
Statistics. See Orfanos v. HHS, 896 F. Supp. 23 (D.D.C. 1995) where
$ 196,800.00 in damages was affirmed by the District Court.
26
The Secretary must follow the PFCRA in this case. Low level employees conducted the fraud investigation, and no general counsel review occurred.
Mr. Roberts was not given a copy of the VA OIG report, not informed of the specific allegations against him, and could not respond in front of a neutral finder of fact.
The Federal Circuit Court discussed agency interpretation of regulations in American Signature Inc., v. United States, 598 F.3d 816 (Fed. Cir. 2010):
“ In general, “[t]he agency’s construction of its own regulation is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Reizenstein v. Shinseki, 583 F.3d 1331, 1335(Fed. Cir. 2009) (citing Cathedral Candle Co. v. U.S. Int'l TradeComm'n, 400 F.3d 1352, 1364 (Fed. Cir. 2005) (quoting Bowles v.Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Christensenv. Harris County, 529 U.S. 576, 588 (2000); Auer v. Robbins, 519U.S. 452, 461 (1997); Gose v. United States Postal Serv., 451 F.3d831, 836 (Fed. Cir. 2006) (“As a general rule, we must defer to an agency's interpretations of the regulations it promulgates, as long asthe regulation is ambiguous and the agency's interpretation is neither plainly erroneous nor inconsistent with the regulation.” (citing Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed. 748(2006))”
See Brown v. Gardner, 513 U.S. 115 ; 115 S. Ct. 552, 555 (1994) (citing King v. St. Vincent's Hospital, 502 U.S. 215, 220-21, n. 9, 116 L. Ed. 2d 578,112 S. Ct. 570 (1991)) (“interpretive doubt is to be resolved in the veteran's favor”).
27
The $ 150,000.00 Limit.
The CAVC ruled that the $ 150,000.00 limit set forth in the PFCRA and VAregulations denies Mr. Roberts the due process of the Act. “However, under § 42of the implementing regulation, no allegations of liability may be referred to anALJ if the false claims or false statements resulted in a monetary gain of more than
$ 150,000.00. 38 C.F.R. § 42.6( a )(2) (2009); see also 31 U.S.C. § 3803( c )(1). Because Mr. Roberts was paid over $ 320,000.0012 in VA benefits as a result of his fraudulent statements, United States v. Roberts, 534 F.3d 560, 563 (7th Cir. 2008)the Board did not err by making its fraud determination without first referring the issue to an ALJ.” Roberts, Id. at 424.
But accord paragraph ( c ) of 38 C.F.R. § 42.6, prerequisites for issuing acomplaint, supra.
The Court follows the VA circular reasoning.
First, the Board decision was prior to trial. The criminal restitution amount was determined on March 2, 2007. Damages in a benefits fraud case is the exclusive province of the Secretary of Veterans Affairs. Damages (if any) shall be
12 Estimate taken from the indictment. The restitution ordered was $ 262,943.52.
Roberts was indicted and convicted on wire fraud such that the prosecution never
had to prove the falsity of his statements in court. VA took away the benefits, he
accepted the electronic fund transfers for years. End of story. Using this litigation
approach virtually any recipient of a federal benefit can be easily convicted as
almost all federal benefits are paid electronically. Which is why the Social
Security Administration charges and proves the actual misrepresentation related to
a disability rather than charging wire or mail fraud.
28
calculated to a sum certain. And the process for that is the adjudication of the case under the 42.1 scheme.
Second, the District Court proceeded with the wire fraud trial because theVA OIG and the U.S. Attorney presented the VA benefits determination as finalwhen they knew or should have known that the CAVC appeal was pending. Usingwire fraud, the acceptance of the monthly benefits payments, allows thegovernment to evade the necessity of actually proving any fraudulent statement orconduct on the part of a veteran or family member. There was no charge underTitle 18 U.S.C. § 1001. This same tactic was used to wrongfully accuse andconvict the widow of catastrophically combat disabled veteran Justin S. Perez-Gorda.
Third, the restitution calculated by the District Court contains criminal finesand costs extrinsic to the VA total.
Fourth, restitution is to be calculated by the VA General Counsel or the ALJunder the PFCRA.13 The CAVC may not serve as fact finder.
Mr. Roberts was denied any semblance of meaningful due process. He was not afforded an opportunity to present proofs on damages. The VA Debt Center was sending out modified damage calculations for years after Roberts wasconvicted. There has never been an accurate statement of the monetary damages in
13 March 2, 2007, Ms. Barbra Nehls, VARO, Milwaukee, testified at sentencing
that Roberts was entitled to a pension offset which VBA had failed to calculate.
The government (Assistant U.S. Attorney) sought over $ 1,000,000.00 using a
continuing conspiracy theory and a life time estimate. No PFCRA damages
determination exists.
29
the Roberts case. Because they were not charged or convicted as co conspiratorsmembers of the Roberts family were entitled to the benefits they received underChapter 35 or CHAMPVA. The VA OIG and the VA Debt Center actually clawedback payments from at least one private medical care provider rather than transferthe amount of the payment to the debt being allocated to Mr. Roberts. That is theprocedure mandated by VA statute and regulation. But no administrative proofswere taken as to damages and so the Secretary has yet to set forth a lawful figurefor monetary damages to the government in this case. Using the “cart beforehorse” logic of the General Counsel and Inspector General (we accused you ofstealing $ 1,000.000.00, so that is the amount, and we will not need to take proofson the issue) the Roberts Court found that the 42.1 hearing was not warranted andthat the Secretary had not committed error or denied Roberts due process of law.
The initial determination of damages is by the VA General Counsel asreviewing official. The Court found a bar to application of the Act prior to issuinga complaint when only the VA OIG and VA OGC are involved. After a complaintthe ALJ determines damages.
The $150,000.00 amount is not jurisdictional. See Orfanos v. HHS, 896 F.Supp. 23 (D.D.C. 1995) where $ 196,800.00 in restitution was affirmed by theDistrict Court.
In his dissent in the en banc Roberts decision Judge Hagel reviewed VAfraud procedures: “The majority and VA would deny Mr. Roberts, who, by allaccounts, served his country honorably, fair process in the pursuit of the severance
30
of his VA disability benefits. In essence, the majority today erects a total bar tobenefits, not just for Mr. Roberts, but for any veteran who commits an act of fraudin the pursuit of his benefits. This position ignores the statutory and regulatoryscheme created by Congress to deal with acts of fraud in obtaining or retaining VAbenefits. . . . In dealing with acts of fraud committed by veterans domiciled in theUnited States, however, Congress has elected to use the tools of criminalprosecution and the imposition of civil penalties under the Fraud Civil RemediesAct rather than forfeiture. See 31 U.S.C. §§ 3801- 3812; Trilles v. West, 13 Vet.App. 314, 321-22 (2000) (en banc) (discussing the difference betweenadministrative forfeiture for fraud for claimants who are residents or domiciliariesof localities outside the United States under 38 U.S.C. § 6103 and criminalprosecution for fraud for claimants who reside or are domiciled within the UnitedStates); 38 C.F.R. Part 42.” Roberts, Id. at 449-450.
It is a well-settled principle of statutory interpretation that one must firstlook to the literal language of a statute prior to resorting to secondary sources todetermine legislative intent, and, if the statutory terms are plain and do not lead toabsurd or impracticable consequences, then the literal language of the statute is thesole evidence of the ultimate legislative intent. Caminetti v. United States, 242U.S. 470, 485, 490 (1917); see also West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991); 2A Norman J. Singer, Sutherland StatutoryConstruction 46.01-.04 (5th ed. 1992) (plain-meaning rule). See Lamar v. UnitedStates, 241 U.S. 103 (1916) (113) plain meaning in dictionaries applicable.
31
The Supreme Court has held that if the legislative purpose of a statute isexpressed in plain and unambiguous language, it is the duty of the courts to giveeffect according to its terms unless that interpretation would reach absurd results orconsequences obviously at variance with the policy of the statute. United States v.Rutherford, 442 U.S. 544, 551-52 (1979).
It is well settled that where ambiguity exists or where literal interpretationwould work unreasonable results, resort may be had to the legislative history toascertain congressional intent. United States v. Public Utilities Commission ofCalifornia, 345 U.S. 295, 315 (1953). The Secretary does not point to anyambiguity in the PFCRA.
For over 20 years the VA has denied veterans accused of benefits fraudaccess to the due process protections Congress established an d mandated. Thereappear to be only two reported cases concerning the PFCRA and Title 38. Ellis v.Dep’t of Veterans’ Affairs, No. CV-05-257-RHW, 2006 WL 224041 (E. D. Wash.01/27/2006), in which a veteran plaintiff attempted to use the PFCRA as a privatecause of action, and this case. Non-compliance resulted in no appeals, hence nocases to review.
The fraud allegations against Mr. Roberts have never been subjected to fairchallenge or review under the PFCRA. This case has not been afforded judicial reviewed since Kisor v. Wilkie 588 U.S. ____ June 29, 2019.
32
VBA Employees Cannot Adjudicate Benefits Fraud Allegations.
The VA claims adjudication process is intended to be ex parte, claimant
friendly and non-adversarial. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
See Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003), where aveteran was denied summary judgment in District Court after a VA grant ofbenefits under 38 U.S.C.§ 1151. First the administrative allegation of fraud mustbe fully and fairly adjudicated. If not resolved in favor of the accused then theSecretary must determine what action should be taken. The Social SecurityAdministration rarely pursues criminal charges in their cases. The Secretary ofVeterans Affairs fails to adjudicate the benefits fraud allegation, and then almostalways seeks criminal charges.
Fraud is quasi criminal in nature. An allegation of fraud is adversarial. Once an allegation of fraud has been made the PFCRA must be followed. Employees of the VBA may not conduct fraud adjudications. See (App. Exh. 9, pp225-281), for an excellent discussion of the quasi criminal nature of anadministrative fraud allegation.
On November 14, 2004, Mr. Roberts wrote to then Secretary of VeteransAffairs Principi. He reviewed the facts of his case and indicated that his right ofdue process had been violated. He clearly indicated that his Navy psychiatrichospital stay was an additional stressor for the PTSD claim. He argued then, andmaintains now that he has a firm diagnosis of PTSD, and that he has at least three
33
stressors. So, his logic goes, if I need one, and you attack one and remove it, then Istill have two others and am still qualified for the PTSD disability benefit.
That certainly amounts to clearer logic than the post hoc Star-chamber14 inquisitionprocess used by the Secretary in this and thousands of other cases. Mr. Robertsblew the whistle on the shredding in the mail room at VARO Milwaukee. Director Jon Baker used the VA OIG as his private enforcer to silence Roberts and send himto prison.
On November 29, 2004, a VARO FOIA officer advised Roberts that his filewas with the OIG in Hines, Illinois, and he must obtain the report of investigationthere.
Mr. Wilkerson, the American Legion Service Officer, sent a memo to theService Center Manager, VARO, Milwaukee, on December 13, 2004. Herequested that benefits be reinstated, and that the VA OIG report be provided as theU.S. Attorney was involved.
Renee Szybala responded to the November 22, 2004, letter on January 4,2005, and called it a valid Notice of Disagreement.
14 Star-chamber. A court which originally had jurisdiction in cases where the
ordinary course of justice was so much obstructed by one party, through writs,
combination of maintenance, or overawing influence that no inferior court would
find its process obeyed. The court consisted of the privy council, the common-law
judges, and (it seems) all peers of parliament. In the reign of Henry VIII and his
successors, the jurisdiction of he court was illegally extended to such a degree
(especially in punishing disobedience to the king’s arbitrary proclamations) that it
became odious to the nation, and was abolished. Black’s Law Dictionary, Sixth
Ed. 1990, pg 1406.
34
Thursday, January 27, 2005, a series of VA email messages were exchanged. At 11:41 a.m., Debi Bevins, Special Assistant to the Secretary of Veterans Affairs,inquires “Have we heard any news on the prosecution of Keith Roberts?”
At 1:54 p.m., Mr. Vasil says Roberts had telephoned his supervisor: “. . .Roberts informed him that just knowing about an accident should be enough to getPTSD; It is not required that you be present.15 I think that is most likely false. . . .Because Roberts is litigious, he (AUSA) also wants it not to appear we are
railroading him with only partial information. . . .Roberts has called theAUSA and has demanded our report, which of course he did not release.”
Renee Szybala, a licensed attorney serving as the Director, Compensationand Pension Service, responded at 2:28 p.m. She indicated that Roberts’ letter wasa valid notice of disagreement regarding the fraud charges. She informed JonBaker, Director, VARO Milwaukee, of the December 1969, assault andhospitalization. “In the interest of full disclosure, I also have a letter on this casefrom the American Legion, dated October 15, 2004, to which I have not yetresponded. The fraud for which Mr. Roberts’ service connection was severed wasuncovered, investigated and reported by the VA OIG. To respond to the Legion’sletter, we need to confer with the OIG and have had trouble connecting. When wedo, we’ll ask them the question about prosecution, too. My guess is, however, that
15 Suozzi v. Brown, 10 Vet. App. 307 (CAVC 1997).
35
this case would not interest a U.S. Attorney. Those offices have monetary andother thresholds that a case like this likely doesn’t meet.” 16
On April 26, 2005, Mr. Vasil provided the only testimony to the FederalGrand Jury. (The prosecution was predicated on the finality of the VA benefitsseverance). Mr. Vasil made a number of material misrepresentations to the GrandJury. He failed to indicate that Dr. Harms referred Roberts to Dr. Kliese, whobased his diagnosis on the December, 1969 Navy psychiatric hospitalization, notthe Holland death. The portion of the military records Mr. Vasil included in hisreport document that stressful event. When examined by Dr. Hastings of the VAMr. Roberts reported the aircraft accident along with the December 1969,psychiatric hospitalization. See the Hastings report.
In his dissent in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002), JudgeGajarsa discussed due process and said that “Because breaches in these casescannot merely be overlooked, I turn to the central constitutional inquiry: whatprocess was due in light of “the practicalities and particularities of the case” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indetermining what process is due, the court must employ a flexible balancing testthat takes into account the particular facts and circumstances, as the need forprocedural safeguards varies with the situation: “due process, unlike some legal
16 A properly run U.S. Attorney’s Office may have turned away the Roberts’ case.
But Mr. Biskupic was working to gain favor with the executive branch to extricate
himself from the Karl Rove “hit list”. See United States v. Georgia Thompson,
484 F.3d 877 (7th Cir. 2007), another politically motivated prosecution.
36
rules, is not a technical conception with a fixed content unrelated to time, place andcircumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). “Dueprocess is flexible and calls for such procedural protections as the particularsituation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).” Cook,Supra, at 1354.
Mr. Roberts has raised a constitutional claim which meets the requirementsset forth in Cook, supra., based on the “particularities and peculiarities of thecase”. Accord Cushman v. Shinseki, 576 F.3d 1290 ( Fed . Cir. 2009).
See Vitarelli v. Seaton, 359 U.S. 535, 545 (1959). The Supreme Court haslong recognized that a federal agency is obliged to abide by the regulations itpromulgates. See also Service v. Dulles, 354 U.S. 363, 372 (1957); Accardi v.Shaughnessy, 347 U.S. 260, 267 (1954); and See Brown v. Gardner, supra, citing King v. St. Vincent's Hospital, Id.
Mr. Justice Jackson in his dissent in Federal Crop Insurance Corp. v.Merrill et al, 332 U.S. 380; 68 S. Ct. 1 (1947), could have been writing of this casewhen he observed:
“ It is very well to say that those who deal with the Government should turn squarecorners. But there is no reason why the square corners should constitute a one waystreet.”
The deprivation of liberty and financial loss suffered by Mr. Roberts due tothe conduct of the Secretary is a Constitutionally impermissible denial of benefitsunder the Due Process Clause of the Fifth Amendment. See Mathews v. Eldridge,
37
424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976): “The interest of anindividual in continued receipt of [Social Security disability] benefits is astatutorily created property interest protected by the Fifth Amendment.” (Citationsomitted); Atkins v. Parker, 472 U.S. 115, 128 (1985). Mr. Roberts deserves hisCongressionally mandated due process.
The Agency Office of General Counsel Failed to Meet TheirObligations to the Appellant as the Reviewing Official under 31U.S.C. §§ 3801-3812, 38 C.F.R. §§ 42.1-42.47 and § 14.561.
As reviewing officials attorneys of the VA Office of General Counsel haveexpress obligations to veterans and other beneficiaries accused of benefits fraud.
38 C.F.R. § 14.561 Administrative action prior to submission.
Before a submission is made to the U.S. Attorney in cases involvingpersonnel or claims, the General Counsel, if the file is in CentralOffice, or the Regional Counsel at the regional office, hospital orcenter, if the file is in the regional office or other field facility, willfirst ascertain that necessary administrative or adjudicatory (forfeiture(see Pub. L. 86-222; 73 Stat. 452), etc.), action has been taken; exceptthat in urgent cases such as breaches of the peace, disorderly conduct,trespass, robbery, or where the evidence may be lost by delay, orprosecution barred by the statute of limitations, submission to the U.S.Attorney will be made immediately.
In the Appellee’s response to the Appellant’s supplemental brief prior to theen banc Roberts oral argument the Secretary adopted the position that the VAOGC has no role to play in VA benefits fraud cases.
(Supp. Br. of Appellee 4-6).
The obligation of the VA OGC to refer all fraud allegations to the OIG forinvestigation does not conflict with the PFCRA. It has no bearing on theobligation of the VA OGC to conduct a review of benefits fraud investigations.
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The Secretary maintains that the word “claims” in 38 C.F.R. § 14.561 refersto contractor claims. The VBA has a backlog of over 1 million benefits claims. They probably adjudicate several hundred contractor claims a year. When §14.561 is read in the context of the PFCRA benefits claims disputes receive specialreview. Benefits fraud allegations must be processed under the PFCRA. Even if adecision is made to expedite the referral of a benefits fraud case to the DOJ, it mustbe made by a VA reviewing officer. The failure of the VA OGC to provideoversight of OIG regarding benefits fraud since 1988 is inexplicable. And nowthat failure has had catastrophic consequences as it has resulted in the death ofJustin S. Perez-Gorda and the wrongful incarceration of his widow.
Whether an agency's interpretation of its regulations announced for the firsttime in a brief is entitled to deference has generated considerable authority both inthe Supreme Court and in the Federal Circuit Court. See Auer, 519 U.S. at 462-63;Reizenstein, 583 F.3d at 1335; Abbott Labs. v. United States, 573 F.3d 1327,1332-33 (Fed. Cir. 2009); Caribbean Ispat Ltd. v. United States, 450 F.3d 1336,1340 (Fed. Cir. 2006). Where the agency's interpretation seeks to advance itslitigating position, deference is typically not afforded to the agency's positionannounced in a brief. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213(1988). See Lamar v. United States, 241 U.S. 103 (1916) (113) plain meaning in
dictionaries is adequate. Accord Caminetti v. United States, 242 U.S. 470, 485,490 (1917). See also 2A Norman J. Singer, Sutherland Statutory Construction46.01-.04 (5th ed. 1992) (plain-meaning rule), discussed supra.
39
The PFCRA and 38 C.F.R. § 42.1 et seq define an essential role for VAGeneral Counsel in benefits fraud cases.
An agency interpretation that eviscerates regulatory language is per seinconsistent with the regulation and may be accorded no deference.
A hearing was held in the U.S. House of Representatives Subcommittee onOversight and Investigations to review the VA Office of General Counsel on June30, 2010.In his testimony Matthew B. Tully, Esquire, pointed out that governmentattorneys are held to a higher standard of ethics than those in private practice. Agovernment attorney must look at the broad public interest, not just a narrowlitigation position. Berger v. United States, 295 U.S. 78 (1935); Bulloch v.United States, 763 F.2d 1115, 1125 (10th Cir. 1985) in which Judge McKay notedin his dissent that concealment of information by the government during discoverywas “made even more egregious” by the government lawyers responsibility to seekjustice and to develop a full and fair record.
Mr. Roberts was wrongfully incarcerated. Government attorneys withheldboth the allegations against him as well as exculpatory Navy evidence,misrepresented the finality of this VA appeal, and failed to provide a completerecord in this case and in the criminal prosecution.
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Withholding of Information.
The VA refused to disclose the VA OIG report of investigation to Mr.Roberts or the American Legion prior to the 2005 Board decision.
There were over 400 photographs taken of the Holland incident and re-enactment. Roberts appears in some of those photographs. The government refused to produce them in either the VA or criminal proceedings.
The duty to disclose is constitutionally required even absent a request by theaccused. See United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed.2d 342(1976). An individual prosecutor has the obligation to learn of any favorableevidence known to others acting on the government's behalf and provide suchevidence to the defendant. Kyles v.Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131L.Ed.2d 490 (1995).
The government’s withholding of information constitutes a violation of dueprocess. Brady v. Maryland, 373 U.S. 83 (1963). The government must discloseto the defense evidence that is both favorable to the accused and “material either toguilt or to punishment.” Id. at 87. In Giglio v. United States, 405 U.S. 150 (1972),the Court clarified that the Brady rule extends to impeachment and exculpatoryevidence. See Id. at 154-55.
The Supreme Court has stated that the United States Attorney (VA GeneralCounsel) is the representative not of an ordinary party to a controversy, but of asovereignty whose obligation to govern impartially is as compelling as itsobligation to govern at all and whose interest, therefore, in a criminal prosecution
41
is not that it shall win a case but that justice shall be done. Strickler v. Greene,527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286(1999)(citing Berger v.United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
i.The position of the VA Office of General Counsel,
Office of Inspector General, and Secretary of the U.S.Department of Veterans Affairs regarding the adjudicationof benefits fraud allegations.
The Roberts case has been in fairly continuous adjudication orlitigation for over 20 years. Sadly it only took a few years for the VA OIG andVBA employees to sever the benefits of catastrophically combat wounded veteranJustin S. Perez-Gorda and obtain an indictment against him for benefits fraud. Mr.Perez-Gorda died after 108 days of “pre-trial detention” in the custody of theFederal Bureau of Prisons. Not only was he denied due process of law, his life wasended by the same abuses Mr. Roberts has suffered.
In 1986 Congress mandated a standard set of regulations to be used by alldepartments of the federal government in the adjudication of allegations of benefitsfraud. The then Veterans Administration promulgated those regulations. Theywere amended in 1988 to reflect the creation of the U.S. Department of VeteransAffairs. 38 C.F.R. §§ 42.1-42.47 (1988) Standards Implementing the ProgramFraud Civil Remedies Act. See 45 C.F.R. §§ 79.1-79.47 (April 8, 1988) ProgramFraud Civil Remedies. These regulations are the same for all agencies. Theending of the “Balkanization” of policies and procedures across government
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programs was the main objective of the 1986 legislation. See United States. Cong.Senate. Committee on the Judiciary. Overview of False Claims and FraudLegislation. Hearing, Jun. 17, 1986. 99th Cong. 2nd sess. Washington: GPO, 1987.(pages 46-47, 46-50). Then Senator Joseph R. Biden was a member of thecommittee which completed this legislative effort.
As discussed above, the position of the VA General Counsel is that VA isnot obligated to make use of the benefits fraud regulations in VA benefits fraudadjudications, and they (VA OGC) have no role to play in benefits fraud matters.
38 C.F.R. § 14.561 Administrative action prior to submission.
Before a submission is made to the U.S. Attorney in cases involvingpersonnel or claims, the General Counsel, if the file is in CentralOffice, or the Regional Counsel at the regional office, hospital orcenter, if the file is in the regional office or other field facility, willfirst ascertain that necessary administrative or adjudicatory (forfeiture(see Pub. L. 86-222; 73 Stat. 452), etc.), action has been taken; exceptthat in urgent cases such as breaches of the peace, disorderly conduct,trespass, robbery, or where the evidence may be lost by delay, orprosecution barred by the statute of limitations, submission to the U.S.Attorney will be made immediately.
In the Appellee’s response to the Appellant’s supplemental brief prior to theen banc Roberts oral argument the Secretary adopted the position that the VAOGC has no role to play in VA benefits fraud cases. And a plain reading of theword claims in the U.S. Department of Veterans Affairs that processes millions ofbenefits claims must be read as referring to contractor claims. (Supp. Br. ofAppellee 4-6).
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There was also an excellent set of articles in the United States AttorneyBulletin. See United States Attorneys’ Bulletin, Vol. 52, No. 6, November 2004,Social Security Fraud, 45 pages.
To our knowledge the VA Office of General Counsel has never conducted aprobable cause review of a benefits fraud allegation since 1986. To our knowledgethere has never been a hearing before an ALJ in accordance with 38 C.F.R. §§42.1-42.47 (1988).
In 2021 the undersigned participated in a video teleconference was with thenVA General Counsel the Hon. Richard A. Sauber. A written presentation wassubmitted which is provided with this motion.
Formal demands for a hearing under 42.1 have been filed for at least 4veterans by the undersigned. No responses have ever been received from either theOffice of General Counsel or the Office of the Secretary. When a freedom ofinformation act request was submitted to the Office of General Counsel they couldnot even find copies of these demand letters. During the past 20 years Mr. Robertswas accused, subjected to a criminal trial in federal court, convicted and released.
Mr. Roberts is still waiting for an answer to his demand for a hearing whichcomplies with 42.1 and the APA.17
17 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301(2)(E), 5335(a)(B), 5372,
and 7521; the Administrative Procedures Act (APA). Since being elevated to
department status the VA has been under an obligation to fully comply with the
APA. Not only have they failed to conduct APA compliant benefits fraud
adjudications, but because the Board does not use administrative law judges we
argue that none of the Board adjudications are APA compliant.
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As stated above, Justin S. Perez-Gorda never received a response to his letterto the Secretary of Veterans Affairs and the General Counsel. The denial of hisrequest resulted in his untimely death. His widow was then subjected to a criminaltrial and was convicted and is now incarcerated. Karl Monkemeyer demanded andwas never afforded a 42.1 hearing. He was indicted, acquitted after a four day jurytrial, and after five years of semi-homelessness and poverty he was recentlygranted full restoration of his benefits.
Had these individuals had access to the due process protections incorporatedin 38 C.F.R. §§ 42.1-42.47 (1988) all of these cases would have been easilyresolved administratively. And with a great savings of time and money for the taxpayers and all concerned.
Mr. Roberts and his American Legion representative demanded a hearing inaccordance with 42.1. This is the first instance of such a demand that I am awareof.
The position of the U.S. Department of Veterans Affairs, the Office ofInspector General and the Office of General Counsel appears to easily summarizedas follows.
First, Veterans and their dependents are third class citizens. They are notentitled to the protections of the United States Constitution, Fourth, Fifth, Sixth,and Eighth Amendments, which are suspended for them.
Second, they are not entitled to actual written notice of the fraud allegationsagainst them. The federal and state law standards mandating that fraud be set forth
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with particularity are not needed when accusing a veteran or veterans beneficiaryof fraud. However, those allegations that are not shared with them will be placedin their electronic VA benefits file in excruciating detail where hundreds if notthousands of VBA employees have access to them. Veterans can have a copy ofthe allegations against them at the conclusion of the VA benefits and criminalproceedings, after their benefits and liberties have been stripped away.
Third, they will have to defend themselves in the Veterans BenefitsAdministration (VBA), the Board, and later the CAVC. That means that they willnever have a hearing on the record which complies with the APA, they will nothave any meaningful discovery, and they will not be afforded an opportunity tohave witnesses called on their behalf or call those making the allegations againstthem such that they can be examined under oath. This also means they will nothave beeen afforded a review of the administrative decision of the ALJ by a federaldistrict court judge as provided in 42.1 and the statutes.
Fourth, they will have to defend themselves in the several forumssimultaneously after their benefits have been terminated or severely reduced. Inthe VA benefits system; in a federal criminal action (white collar crime, where a
$ 50,000.00 retainer for a defense attorney is not remarkable); in the SocialSecurity Administration because the VA OIG pushed their allegations to thatagency; and even in state and local court because payments made under VAChapter 35 or CHAMPVA have been clawed back by VA absent any notice orstate or federal legal process to the beneficiary or the provider of the services.
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This has been going on since 1986. The VA OIG admits that there havebeen over 5,000 of these cases. They also admit that a majority of the cases havenot resulted in convictions. But the documents related to the allegations are stillpresent in the benefits claims file for all to see. See (App. Exh. 4, p 004).
So if you are Keith A. Roberts you get 1,200 days of confinement. Eightynine days of which were pre-trail detention. But if you are Justin S. Perez-Gordayou get an administrative death sentence from the employees of the VBA, VHA,OGC and OIG.18 One hundred and eight days of pre-trial confinement with littleto no medical care during a pandemic until you die. And your widow is then triedand gets 4 years in prison. Thanks for your service.
That appears to be the position of the VA Office of General Counsel and the
Office of the Inspector General. And from that I may infer that it is the position ofthe Secretary of Veterans Affairs and the President of the United States.
We note that the purpose of inspectors general is to detect fraud, waste andabuse. See 5 U.S.C. App., Public Law 95-452, As Amended Through P.L. 114-317, enacted December 16, 2016, the Inspector General Act of 1978. So VA OIGagents are not police officers. However, in the Roberts case Mr. Vasil, a disgracedpolice officer, conducted warrantless searches of his VA files containing hisservice, benefits, VA medical, and private medical records. The files of most
18 Those involved in these unlawful benefits fraud adjudications are exposed to
personal liability in accordance with Bivins v. Six Unknown Named Agents, 403
U.S. 388; 91 S. Ct. 1999; 29 L. Ed. 619 (1971).
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veterans contain mental health records which have a higher level of protection thanother types of records.
These reviews were all conducted absent any probable cause review oroversight on the part of the VA OGC and were contrary to 5 U.S.C. § 552a, ThePrivacy Act and the Fourth Amendment. Mr. Vasil Conducted at least oneinterrogation of Mr. Roberts in which he failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).Roberts received his first Miranda notice when he was arrested when hesurrendered at the time of his arraignment. Justin S. Perez-Gorda was interrogatedfor over 8 hours by two VA OIG agents while in custody in a local county jail. Karl Monkemeyer was placed in an interview room at a VA facility andbrowbeaten by a VA OIG agent for over 30 minutes in an effort to have himconfess to something he did not do. Mr. Monkemeyer had arrived at the facility toparticipate in a pre-determination hearing regarding an allegation of benefits fraud.He had no prior knowledge of what fraud he was alleged to have committed.
Mr. Roberts has had an inordinate amount of process. It has not beenmeaningful due process. Nor has it been fair or lawful in most instances.
See Roberts v. Shinseki, 23 Vet. App. 416 (2010) (en banc); Roberts v. Shinseki,643 F.3d 1334 (Fed. Cir. 2011) (Cert. Den.); Roberts v. Wilkie, 16-1219
(August 15, 2018); Roberts v. the United States of America, No. 08-788 Cert.
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Den. (U.S. Dec. 15, 2008); United States v. Roberts, U.S. District Court, EasternDistrict of Wisconsin, docket 05-CR-115, and United States v. Roberts, 534 F.3d560 (7th Cir. July 7 2008) (Cert. Denied 08-788, December 15, 2008).
6. JURISDICTIONAL STATEMENT
A.The Board takes jurisdiction of and reviews motions for vacaturein accordance with 38 C.F.R. § 20.1000 (a).
The Board takes jurisdiction of and reviews motions for vacature inaccordance with 38 C.F.R. § 20.1000. These reviews are within the discretion ofthe Board. The denial of due process is grounds for vacature. See 38 C.F.R. §20.1000 (a). Here there have been numerous due process violations. 1.) Failure toprovide adequate notice in accordance with 38 C.F.R. § 20.908, accord Thurber v.Brown, 5 Vet. App. 119, 126 (1993), accord Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306 (1950). The BVA and Board fraud adjudication reliedupon the falsified investigative report of the VA OIG which was withheld from theAppellant and his VSO until after the Board decision was issued; 2.) Failure toprovide a copy of the complete claims file to the appellant prior to rendering thedecision of the Board; 3.) Failure to adjudicate the appeal on the entire record. Asdemonstrated below, the record was grossly incomplete and was never available tothe Board prior to the August 2005 decision. The original benefits claims file wasgiven to the VA OIG contrary to the provisions of the Administrative ProceduresAct (APA), 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301(2)(E),
49
5335(a)(B), 5372, and 7521; and, 4.) Failure to comply with the Congressionallymandated due process provisions of 38 C.F.R. §§ 42.1-42.47, 05-11-1988.
Since the fraud adjudication regulations were first promulgated in 1986 theBoard should have been limited to a review of the action by the RO inimplementing the order of the ALJ to ensure compliance. The Board has nolawful jurisdiction to adjudicate fraud cases. Congress has occupied the field.
B.The Board takes jurisdiction of and reviews motions for
vacature when fraud has occurred. As demonstrated below,
the severance of the disability benefits of the veteran was
based upon materially false statements by employees of the
U.S. Department of Veterans Affairs as well as the withholding
of material and exculpatory evidence from the Veterans Benefits
Administration, the Board, the U.S. Court of Appeals for Veterans
Claims and other Federal Courts. The Board may vacate a
decision based upon fraud under 38 C.F.R. § 20.1000 (b).
The Board takes jurisdiction of and reviews motions for vacature when fraud has occurred. As discussed above and further demonstratedbelow, the severance of the disability benefits of the veteran was based uponmaterially false statements by employees of the U.S. Department of VeteransAffairs. The record supports the conclusion that VA employees withheld materialand exculpatory evidence from the Veterans Benefits Administration, the Board,the U.S. Court of Appeals for Veterans Claims and other Federal Courts.
The Board may vacate a decision based upon fraud under 38 C.F.R. §20.1000 ( b ). Here the fraud was committed by employees of the agency and not
50
the veteran, but the Board still has jurisdiction over the matter as the fraudcommitted by the employees is a clear denial of due process.
7. STANDARD FOR REVIEW
A.The Board reviews motions for vacature under 38 C.F.R. §20.1000. Congress has chosen the preponderance standard
for fraud cases. See Grogan v. Garner, 498 U.S. 279 (1991)
at 286, 288.
The Board reviews motions for vacature under 38 C.F.R. §20.1000. Congress has chosen the preponderance standard for fraud cases. SeeGrogan v. Garner, 498 U.S. 279 (1991) at 286, 288.
Findings of the Board as to the degree of disability and service connectionare both factual and legal. This case presents both factual and legal issues.
This is an unusual case. Because VA benefits fraud cases should not beadjudicated by the Veterans Benefits Administration they should not require areview by the Board. See 38 C.F.R. §§ 42.1-42.47, 05-11-1988. If thecongressionally mandated due process procedures are followed in a benefits fraudcase benefits would only be reduced or severed after the final findings of fact andrulings of law by the Administrative Law Judge conducting the hearing as well asthe appeal, if any, to a federal district court. To our knowledge the Secretary hasfailed to hold a single hearing or make a single probable cause determination inany of the over five thousand benefits fraud cases that have been adjudicated since1986.
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This is a hypothetical discussion based upon the existing VA regulations aswell as the practices and procedures of other agencies that actually comply with thelaw. It appears that in VA benefits cases any appeal of the decision of the ALJwould proceed to a Federal District Court. Any appeal of that ruling wouldproceed through the U.S. Court of Appeals for the Federal Circuit and then on tothe Supreme Court of the United States. See the discussion, supra, of the positionof the U.S. Department of Veterans Affairs regarding the adjudication of benefitsfraud allegations.
At this point the procedure in M-21 would actually work. Since the ALJ hadissued a final agency decision and all appeals had been exhausted the RegionalOffice would only need to implement the order of the ALJ. If unfavorable to thebeneficiary the order would include monetary damages to a sum certain along withinstructions for reduction or severance of any benefits.
The RO would simply place the order in the benefits claims file, create adebt if needed, and issue a rating decision as to the benefits. There would be noneed to discuss the underlying facts and allegations as the benefits fraudadjudication would have occurred before the ALJ. That record and evidence would be kept in a separate system of records. Unproven allegations anddocuments which could be prejudicial to the veteran or other beneficiary would notbe in the benefits claims file. The claims file of Mr. Roberts and hundreds of otherveterans and dependents accused of benefits fraud but later exonerated now containthe original allegations which are difficult if not impossible to expunge.
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In the event the Board received an appeal of one of these RO ratingdecisions the only review available would be to ensure that the RO had fully andfairly complied with the final order of the ALJ.
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8. CONCLUSION
The decision of the Board dated August 26, 2005, must be vacated and the100 percent rating for service connected disability benefits of Mr. Roberts must berestored nunc pro tunc to November 14, 1990, the new effective date establishedby the Board in the order dated December 18, 2018, forthwith.
This case does not require remand to the VA Regional Office for any furtherproceedings.
The systemic failures on the part of the Inspector General and the GeneralCounsel of the U.S. Department of Veterans Affairs has resulted in the wrongfulincarceration of an innocent veteran for 1,200 days. The Board does not have theauthority or the means to restore the reputation or the days lost in a wrongfulincarceration for Mr. Roberts. The Board does have the authority to restore hiswrongfully severed disability benefits. And that they should proceed to do.
The Board should not permit any interference with this action from the
VA IG, nor should the VA IG be requested to review this vacature action.
The systemic abuse of due process detailed in this case is on the scale of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Mr.Roberts was wrongfully incarcerated for 1,200 days due to the willful andintentional efforts of the U.S. Department of Veterans Affairs to circumvent thelaw, misrepresent the facts of this case, and deprive him of the due process of law mandated by Congress for veterans accused of benefits fraud since 1986.
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“Let justice be done though the heavens should fall.”
-John Adams, letter to Elbridge Gerry, December 5, 1777
/s/ Robert P. Walsh Dated: June 25, 2023
Robert P. Walsh-Michigan Bar P-42833
Attorney for Claimant-Appellant
Keith A. Roberts
Law Office of Robert P. Walsh
2 Michigan Avenue West, Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9592
E-mail: robert@robertpwalsh.com
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9. WAIVER OF ORIGINAL JURISDICTION CONSIDERATION
KEITH ALBERT ROBERTS, C 28 353 461, waives his right to aSupplemental Statement of the Case or any other review from the agency oforiginal jurisdiction, VARO St. Paul, Minnesota, or VARO Milwaukee,Wisconsin, considering any new evidence, issues, or testimony submitted to theBoard in this motion.
/s/ Robert P. Walsh Date: June 25, 2023
ROBERT P. WALSH, Esq.
2 Michigan Avenue West
Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9693
E-mail: robert@robertpwalsh.com
Attorney for Claimant-Appellant
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10. CERTIFICATE OF SERVICE
On the date affixed below I personally uploaded the documents listed belowto the VA Direct Upload Centralized Mail Quick Submit Web Portal.
U. S. Department of Veterans Affairs
Evidence Intake Center
P. O. Box 4444
Janesville, WI 53547-4444
Telecopier (844) 531-7818 VBMS Web Portal
APPELLANT
Mr. Keith A. Roberts
13269 Morgan Road
Gillett, Wisconsin, 54124
Telephone (920) 855-6328
E-Mail: blackfalcon1982@centurylink.net
DOCUMENTS
(a)
Certificate of Service.
(b)
BVA Motion with supporting brief to vacate thedecision dated August 26, 2005.
(c)
Appendix in support of the motion and brief, 316pages.
June 25, 2023/S/ Robert P. Walsh, Esq.
Date:
Robert P. Walsh (P42833)
Attorney for Claimant-Appellant
2 Michigan Avenue West
Suite 301
Battle Creek, Michigan 49017-7002
Telephone (269) 962-9693
Telecopier (269) 962-9592
E-mail: robert@robertpwalsh.com
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11. APPENDIX
Page
Keith A. Roberts, VA Claim Number C 28 353 461
Index to Exhibits
Exhibit 1.Email from S. Kulevich to J. Imboden, continued VA OIG
interference with the adjudication of the Roberts benefits claims,
09-16-2015, 1 page..................................... 001
Exhibit 2.FOIA response VA OIG to Robert P. Walsh, 08-10-2018,
2 pages. ............................................. 004
Exhibit 3.Email from Renee Szybala to Debi Bevins re: Roberts case,
01-27-2005, 1 page......................................007
Exhibit 4.Letter, American Legion, Philip B. Wilkerson, to Renee Szybala,
Director of Compensation and Pension Service, 10-15-2004,
5 pages................................................009
Exhibit 5.Affidavit of Mr. Keith A. Roberts, 03-09-2007, 12 pages........015
Exhibit 6.Transcript, Federal Grand Jury testimony, Raymond P. Vasil, VAOIG, 09-13-2005, 8 pages.................................028
Exhibit 7.Transcript, Federal Grand Jury testimony, Raymond P. Vasil, VAOIG, 04-26-2005, 75 pages................................037
Exhibit 8.Sworn Affidavit of Commander Robert D. Hathaway, U.S. Navy,
Retired, with exhibits, 04-12-2019, 113 pages.................113
Exhibit 9.Motion and Brief Amicus Curia of Phillip Cushman, Roberts v.Wilkie, CAVC 16-1219, motion to intervene denied by order dated10-27-2017,57 pages.....................................225
Exhibit 10.38 C.F.R. §§ 42.1-42.47, 05-11-1988, 34 pages................282
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