Jurrisdiction Questions

[sox]

Okay I have some questions Regarding the differences of the BVA CAVC and Supreme court Appeals....

Does the BVA determine or review the constitutionality of appeals based on due process?

In non veteran courts they review Constitutional appeals in a strict manor, does this hold true for the BVA?

If not how does the BVA respond regarding jurisdiction and appeals concerning due process?

Does the CAVC review decisions regarding the BVA before they become final?

If title 38 CFR doesn't coincide with United States Code how does the BVA address this?

What other recourse does a veteran have at their disposal if their due process rights have been violated?

Thanks for your help and consideration,

Sox

 

[sox]

I know it is a very broad question My appeal shows that the Veterans Administration did not abide under title 15 usc 1692n under the Fair Debt collections act concerning a clerical overpayment when reactivated under OIF OEF. I feel the debt collection practices do not follow the intent of fair debt collection practices act and they failed to afford state sovereign protections even after notification of the law. I am trying to understand the BVA Jurisdiction to determine what ability they would have to redress my concerns. I am hopeful that no other veteran will have to go through the agencies policy of immediate offset/ garnishment without some protections prior to said offset / garnishment. I do not see government agencies as above the law and not required to follow the  very same intent congress set forth under the fair debt collections practices act.

Thanks for your thoughts,

Sox

[sox]

Okay, I have been doing a lot of research from 19 and 20 CFR ant title 5 USC. Honestly I cant find anything that will punch a hole through my constitutional concerns under 15 USC 1692 fair debt collections act. From what I have read not only is this USC applicable but the intent of the law is binding. So best case scenario the title 38 CFR is changed by the BVA worst case is my case makes it to the supreme court and they are force feed the decision. This could declare the debt collection activities of all federal government agencies declared unconstitutional if the additional state rights are not abided by, and the according CFR's are struck from the record and refreshed. I am hopeful this will help fellow veterans by preventing the abuses of immediate garnishment of all benefits until repayment by offering a little flexibility giving you enough to survive. I also find it strange that a government agency would completely ignore state law when the states originally gave the federal government its power under the constitutional convention and the subsequent bill of rights.

It looks like Federal agencies have a lot to loose if this makes it to the top....

Edited October 20, 2015 by sox

[Chuck75]

Regardless of how things end up, the VA pursues "debt" collection until they are forced to stop.

I'd expect to see that occur, unless a waiver is asked for, and it may occur anyway, due to the VA's delay in doing things.

My experience with this sort of thing is currently ongoing. The VA made an error in retro payment, by not following the "rules".

Past experience involved drug co-pay, and the VA trying to charge interest on money that had been refunded as improperly charged ?????

(If you get involved in this, as I did, the answer was to request an insurance audit by the requisite VAMC. Until this occurred, I was getting a circular run around.)

 

[pwrslm]

 

CAVC and SCOTUS are the typical routes for  BVA issues.  But the Fair Debt Collection Practice Act is not under the jurisdiction of either the CAVC or the BVA.  Depending on the violation of the Fair Debt Collection Practice Act, it might need to be acted upon as FTCA.  Federal Tort Claims Act is not limited to acts under 38 USC or CFR.

 

This is something that an experienced attorney should address.  This is a fairly complex legal issue.  Contact an Attorney, get a free opinion on your case.  That's what I would do.  Whether or not the VA (a govt entity) is bound by the Fair Debt Collections Practice Act is beyond me.  Certainly other govt agencies (ie...IRS) are not phased by the Fair Debt Collection Practice Act.

[sox]

Chuck75

     I actually requested an audit early on of my account due to some changes in payment for medical offset. After receiving the audit I received a statement fro the regional office stating “Based on our audit, We found that the amount you were paid equals the amount you were due. This means we paid you correctly.”

Then about a week later a statement saying I owed $6,500.  My disability compensation was garnished the same month 100%. I then asked for a waiver for the debt and also requested a second audit request. It took 4 months to get the results of the audit which came back as stating “We reviewed your claims folder. We determined that your overpayment is correct. Enclosed is the detailed analysis that explains why you were overpaid.”

Then a week later a denied debt waiver. Keep in mind I was appealing their decision in an attempt to validate what was going on and they took 4 long months without disability compensation to do the audit. The first audit only took about a month and a half so it looks like they were dragging their feet on purpose.

The debt ended up getting paid in full due to an increase in compensation with the retro. I have been fighting this as I don't feel it is reasonable to state that you were paid correctly and then owe $6,500 a week later. Not only that but they referred the debt to the treasury offset program before the proper timeframe while waiting for the results of the audit and waiver results. I ended up writing a statement to the TOP program about the debt being under dispute and they rejected the claim and kicked it back to the VA for garnishment. I can't understand how any of these actions gives a person due process rights and honestly they are very deceptive to the debtor.

PWRSLM

I did a little research on TORT FTCA under 38 USC and it looks like the tort claims are primarily focused on individuals working for an agency that violate law. I'm not sure if the individuals are going really fix the issues with the agency but it could make money for a lawyer etc. I also looked into the Debt Collection Improvement Act of 1996 which states "(5) To ensure that debtors have all appropriate due process rights, including the ability to verify, challenge, and compromise claims, and access to administrative appeals procedures which are both reasonable and protect the interests of the United States." The more research I do the more I see the Due process clause being protected or cited.

Under the Fair Debt Collection Act 15 U.S. Code § 1692n - Relation to State laws it states "This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter."

And the State of New Hampshire under RSA 358-C Unfair, Deceptive or Unreasonable Collection Practices“XI. Threatens that nonpayment of a debt will result in the arrest of any person or the seizure, garnishment, attachment or sale of any property or wages without indicating, when a court order is a legal prerequisite to any such action; that

(a) There must be a court order in effect permitting such action; and, where applicable,

(b) That the debtor will have an opportunity to appear in court to contest such action prior to any such court order being effective;”

These laws were cited on my Form 9 and mentioned at the BVA hearing and I asked under the FOIA for a copy of a NH court order for garnished benefits. Of course it was unanswered as they never got one....

Again thank you for your ideas and thoughts concerning this appeal.

Best,

Sox

 

 

 

 

Edited October 21, 2015 by sox

[sox]

OK Found A good read regarding Jurisdiction....

http://forums.military.com/eve/forums/a/tpc/f/163198221/m/1870011862001

 

The Application Of Precedential Decisions Of The CAVC And The Federal Circuit

 

Rakkwarrior posted Mon 21 February 2011 07:52 PM

 

In preparing a case to be submitted to the Board of Veterans' Appeals (BVA or Board), one must consider the application and discussion of standing Court precedents. Specifically, pursuant to Title 38 U.S.C. §7104© "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department."

The Board's mission, as set forth in 38 U.S.C. § 7101(a), is "to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner." The Board's goal is to issue quality decisions in compliance with the requirements of the law, including the precedential decisions of the United States Court of Appeals for Veterans Claims (CAVC) and other federal courts.

Some links have been provided by mil.com regarding VA Fast Letters (FL's) and Training Letters (TL's), however, I did not notice an index of Decision Assessment Documents (DAD's) and other internal circulars which describe how the VA Regional Office's adjudicators may apply Court Precedent. The Board, however, is comprised of Veterans Law Judges and Staff Attorneys who are not necessarily bound to the confines of such legal guidance. However, they may use the quasi-legal material to inform their decision.

The the United States Court of Appeals for Veterans Claims (CAVC) is an Article I Court codified under Chapter 72, Title 38 U.S.C. to decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; hold unlawful and set aside decisions, findings which are found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C ) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or( D) without observance of procedure required by law, pursuant to Title 38 U.S.C. § 7261.

This Federal Circuit Court has limited jurisdiction in reviewing the decisions of the CAVC. Their authority is limited to deciding all relevant questions of law, including matters of statutory interpretation.   See 38 U.S.C. § 7292(d)(1).   We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  (B) contrary to constitutional right, privilege, or immunity;  © in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right;  or (D) without observance of procedure required by law."  Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation.   See 38 U.S.C. § 7292(d)(2);  Anglin v. West, 203 F.3d 1343, 1345 (Fed.Cir.2000).

The Federal Circuit Court also has authority to review decisions of the Veterans Court regarding the "validity of any statute or regulation or any interpretation thereof" and to "interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292©; see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). [They] review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 2007-7306 4 1343 (Fed. Cir. 2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008).

In regard to the aforementioned, BVA decisions may not be cited as precedent setting in any instance, and incorporation of specific BVA decisions in individual claims often detracts from the probative value of the claim, namely because the BVA ruled on specific findings of fact to that veteran's case, and while the legal precepts which provided the reasons and basis for the Board's decision offer significant insight into the application of the law, it does not alleviate those citations to have specific bearing on your case.

In a recent February 2009 hearing before the U.S. Senate Committee on Veterans' Affairs Richard Cohen of the NATIONAL ORGANIZATION OF VETERANS' ADVOCATES properly assessed, "In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance." I cannot agree more, in most cases, however as noted before, VA Regional Office adjudicators are guided by internal guidance or DAD's.

A precedent decision is a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Precedent decisions are made by en banc (full bench), or a panel of three or more judges. It is the similarity of the Court's precedent to the individuals case which will compel the Board's persuation on the issue at hand. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.

As a National Service Officer (NSO) of the Disabled American Veterans (DAV), I am accredited to practice VA law as an attorney-in-fact up to the Board of Veterans' Appeals, and currently we are the only organization to have a non-attorney practitioner allowed to practice before the Court. NSO's are internally trained in VA law, we do not require yearly cerification by VA's ridiculous and often inadequate testing, or seek outside assistance from other sources. This is achieved through a 16 month OJT program, and a three year Structured and Continuing Training program which covers not only regulation, and U.S. Code, but also precedent decisions of the CAVC, Federal Circuit, and as it pertains to VA law, Supreme Court Decisions such as that found in Shinseki v. Sanders (2009). The latter training is ongoing and continuous throughout an NSO's career. We use this independent knowledge and precepts of law to prepare briefs in lieu of VA form 646's and supplemental appellate briefs pending before the Board.

Here are some references in assisting the readers in locating Court Precedent:

U.S. CAVC:
http://www.uscourts....ns/Opinions.cfm

The U.S. Court of the Federal Circuit;
http://www.cafc.usco...vc/all/p/p.html

The U.S. Supreme Court: (search "Court of Veterans Appeals")
http://www.supremeco...ket/docket.aspx

It is the Court's review and discussion of relevant case law which will guide successful argument before higher appellate bodies, although I have been known to write briefs to the VARO, I usually constrict these to the confines of the internal Manual provisions, FL's, TL's, and DAD's. I had learned that aggressive posturing only confused the VARO and compelled furtherance of certain cases to BVA.

One thing a claimant must understand is that not all issues will be won at the Regional Office level, some claims are too complxes, or are outside their legal authority to grant. In these cases it is better to prepare for VLJ review than to continue the case going in circles at the VARO, with redundant Statements and Supplemental Statements of the Case (SOC/SSOC's). It is wise to understand when the case can reasonably granted at the RO level, and when it cannot.

*Other VSO's have training programs that I am not completely privy to, but most include training from the NVLSP, NOVA or other attorney groups. I do not disparage other VSO's but do routinely analyze whether or not their methods and prosecution has been effective. I also do not intimate that all DAV NSO's which members of this forum may have encountered are always and infallibly right, or that they correctly demonstrated the organizational values, and mission to the veterans' community. For a bit of candidness, I will tell you it is difficult to recruit for an NSO position, and because we are all disabled, some do not make it, or cannot achieve the level of concentration to maintain the pace at which we are required to initiate, develop, and prosecute claims.*