Tort Claim in U S District Court

[Lemuel]

Reposting because I can't make additional comments on original post.  Hope this one is different.

I'm attaching my Pro Se Complaint filed in U S District Court on December 15, 2017.

Also the U S Attorney's motion to dismiss.

I would like to hear any suggestions of U S Code and CFR articles that should be challenged under Sec (4)(d) of the 14th Amendment which was ratified on July 9, 1968.  "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

For one, I would like to challenge the payment of back payments in rates that have been raised via COLA increases.  My challenge is the Amendment was ratified under the gold standard.  While there were variances across the land in how much gold it took to buy a good horse, the price of a good horse did not vary the way inflation affects the price today.  The dollar we receive in past benefits should buy the same basket of groceries it would buy at the time the debt by the government to us is recognized.

We need to challenge the Feres doctrine again now that the Sec (4)(d) is recognized in the Appeals Court process.  From 1968 until the Court of Appeals for Veterans Claims was established Sec (4)(d) was essentially written out of the 14th Amendment by refusal to hear or by decisions such as the 1955 Feres decision.  There were no cases in annotated texts of Appeals decisions under Sec (4)(d) when I first attempted to address the problem of the minimization of organic brain syndromes including damage by mild to moderately severe TBI, diseases, and other exposures such as oxygen supply interruption.
 

I'm also requesting assistance in researching case law to counter the U S Attorney's response.  I will be doing research via Fastcase.com and will post for any of the problems listed by others with their claims that I have read that I happen on to.

I also have a pending Appeal to the CAVC which I will update on this thread.  Presently the VA has made 5 form letter responses to the CAVC saying my dispute with the RBA remains open.  No detail required by the Clerk's Order has been provided regarding the attempt to resolve the dispute.  I have received no personal contact from the two attorneys assigned to handle the case.  One for the case and the other for the disputed RBA.

Can't get "Answer Question" to come up on this post so will edit to add.

To Challenge under 14th Sec (4)(d):

1:  Limitations of effective dates to other than evidence of onset of disability and evidence of increase.  (look up U.S.C 38 AND 38 CFR)

2:  "Closure of Claims" by VA without consent of Veteran.  (look up U.S.C 38 AND 38 CFR)

20171215 Court complaint.pdf

20171215 Court complaint tolling.pdf

20180103 POS Rebuttal CM-EF Reg.pdf

20180103 Rebuttal obj eq tolling.pdf

20180109 DCDW denial Motion Eq Toll.pdf

20180213 U S Motion to dismiss.pdf

20180306 Objection to Dismiss.pdf

20180306 Objection to Dismiss Brief.pdf

Edited March 22, 2018 by Lemuel
add updated filings

[Berta]

Re: the Federal Court Case:

It states"The United States, by counsel, respectfully moves the Court for an order dismissing this action under Rules 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The grounds for this motion are set forth in detail in the brief filed contemporaneously with this motion. For the reasons set forth in its brief, the United States respectfully requests that the Court dismiss Plaintiffs’ action. Dated this 13th day of February, 2018."

There are many reasons a Motion to dismiss can succeed .

In this case the US attorney has cited Rules 12(b)(1) and 12 (b)(6) that are expanded in the brief they filed with the court.

I had a Federal Case  and went pro se---and had to purchase  the Rules of the Court  and study them  to a "T"-many years ago. They would probably be far different depending on what district court your filings are at.

Every court has their own published court rules they use which control the proceedings.And which we must abide by if we have filed a cause of action complaint in a Federal district Court.

After the defendant's lawyer disposed me, in a few weeks I deposed the defendant and got what I wanted.

I still have the taped depositions.

It was not about money, it was about the incompetence some of us deal with when we get lousy vet reps.

But if I had lost my VA claim at that point it would have been about money.

I do not advise anyone filing federal district court complaints without a lawyer or without any prior Pro se background.

You need to read over those citations carefully  that the US  attorney cited in their Motion to dismiss.

The court might well agree with them and then dismiss your case.

 

 

 

[Lemuel]

The motion to dismiss contains the Feres Doctrine which is a citation for an Appeals Court Decision stating medical negligence in the military cannot be claimed under the Federal Tort Claims Act. (FTCA)

I cannot find the exclusion of "Enlistment Contracts for Military Service" in the FTCA.  Is this just a "court decision?"  Where is it based in the U S Code?

This is the VA General Counsels statement on the GC website:

Office of General Counsel

 

Claims Under the Federal Tort Claims Act

The Federal Tort Claims Act prescribes a uniform procedure for handling of claims against the United States, for money damages only, on account of damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.

A claim against the United States, predicated on a negligent or wrongful act or omission of an employee of the Department of Veterans Affairs acting within the scope of his or her employment, may be filed by the injured person or his or her legal representative using Standard Form 95, Claim for Damage, Injury, or Death; however, use of the SF 95 is not mandatory, so long as the requirements are met that there is a signature of the appropriate claimant, sufficient information to investigate the allegation, and a sum certain demand.  The completed and signed claim should be submitted directly to the Office of General Counsel through the Chief Counsel located in the geographic area wherein the occurrence complained of took place.  A tort claim must be filed within two years of the date the claim accrued. This generally means that the General Counsel must receive the completed claim form within two years of the accident or injury which gave rise to the claim, but may run from the time when the claimant knew or should have known of the injury.

https://www.va.gov/OGC/FTCA.asp

The U S Code is Title 28,

I think I found the root of the Feres Doctrine.  

Title 28, Ch 171, 1346 (d) "The district courts shall not have jurisdiction under this section of any civil action or claim for a pension."

Compensation for VA negligence is under 38 CFR 3.154 and "disability compensation" is considered a pension.  Same for the Navy.

I'm trying to move to "Due Process".  The deception of minimizing the Narrative Summary and of covering up the use of a contra indicated drug to prevent compensation and thus currently upheld by the AOJ and the extreme delays by the AOJ, the BVA in getting to the CAVC.  The CAVC's lack of jurisdiction until after the BVA.

The U S District Court is the "jurisdiction" in getting to the CAFC in the absence of being able to get there through the CAVC because of the obstruction, deception and delays. 

[Lemuel]

I think I found the root of the Feres Doctrine.  Appreciate your thoughts on this, Berta.

Title 28, Ch 171, 1346 (d) "The district courts shall not have jurisdiction under this section of any civil action or claim for a pension."

VA disability compensation for medical negligence is covered by 38 CFR 3.154.  Same with military medical negligence while on active duty.  It is compensated by disability compensation.  Both are considered "pensions."

I will change the approach to Due Process, obstruction, deception etc., of the negligence compensable by disability compensation (pension).  Will have to base on Constitutional claims to invalidate the "jurisdictional" problem under the Code.

[1]Section 4 of the 14^th in part: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States,

 

[1] Article 8 of the Constitution in parts: “…The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…” “…To make Rules for the Government and Regulation of the land and naval Forces…” ”… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…” ”…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

 

[1] Article 9 of the Constitution in part: “No Bill of Attainder or ex post facto Law shall be passed.”

 

[1] 5^th Amendment in part: “…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

 

[1] 7^th Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

[1] The 9^th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

 

[1] The 16^th Amendment: “The Congress shall have power to lay and collect taxes on incomes, from whatever

source derived, without apportionment among the several States, and without regard to any census or enumeration.”

 

[1] The Preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

 

[1] TITLE 28, U.S.C. §2401. Time for commencing action against United States

(a) Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.

 

[1] TITLE 41, Section §7101

(9) MISREPRESENTATION OF FACT. The term "misrepresentation of fact" means a false

statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.

 

Note:  I will argue that TITLE 28, U.S.C. §2401. Time for commencing action against United States

references chapter 71 of title 41 thereby incorporating Section 7101 as a matter of Common Law reciprocity authorizing its use against the government.

 

I'm looking for the root of the claim of immunity of the government claimed by the U S Attorney.  Probably also rests in Common Law.  I didn't find it reading the Constitution yesterday but will go through again to be sure.

 

Will also argue that where the Constitution grants "Power" it confers responsibility to uphold the Preamble and other sections and amendments that withhold authority to the People or grants rights to the People.

 

Edited February 21, 2018 by Lemuel
add additional thoughts

[Lemuel]

I also want to challenge the limitation of compensating disabilities to the "liberalization date."  The general articles provide for compensation for items not listed in the schedules.  Once it becomes obvious to the point of "liberalization" it is not a Post De Facto change to compensate veterans back to the earliest date of demonstration of the disability.

Also need to challenge the date of claim instead of the date of evidence of disability especially for those who suffer from PTSD or anosognosia.  Of course in some cases evidence of the disability isn't developed until a claim is submitted.  But in others there is more than enough medical evidence to date the disabling condition and rate it at various dates of progression of severity.

[Berta]

The Feres Doctrine has never been overturned.

I have no knowledge of Title 28 issues - I just know Title 38 issues and FTCA as it applies to VA malpractice....and all I know on that is here in the FTCA/1151 forums.

Edited February 22, 2018 by Berta
deleted part of my reply after re-reading-these issues are for lawyers

[Lemuel]

I don't expect to overturn the "Feres doctrine."  Title 41, 7103 provides other agencies are responsible for dispute settlement under their regulations.  I don't think deception, obstruction and extreme delays are covered and I'm hoping because of those I'll get the Court to take the case.

My challenge is to the deception of minimization of Narrative Summaries of treatment of injuries and diseases that result in mild to moderately severe organic brain syndromes.  Without the clear report of the severity of the injury or disease condition, and instead minimalizing in the Narrative Summary, the VA adjudicators are misled into believing the veteran is malingering because the report doesn't indicate the severity of the complaints would be expected.

This is especially true of p. falciparum malaria victims (I am not one) where the rehabilitation summary which does not include the acute phase and provides a very benign picture of the victims condition is all that is in the military health record that the VA gets without requesting the inpatient records for the acute phase of the disease.

Although I am not a cerebral malaria victim, I intend to use the way the Narrative Summaries of the condition were entered into Vietnam veterans health records as proof of the apparent policy coupled with a bogus study used in 1998 before the House Veteran's Benefits subcommittee.  The study used two groups of veterans who had p. falciparum malaria  stating that because group 1 and group 2 had similar IQ post disease, the disease had no residuals of brain damage.  Last year NIH released a study that showed the physiology of brain damage.  Pathology text books of the Vietnam Era also demonstrated brain damage causing death and demonstrate the separation of the two groups is invalid.

If I can get into discovery, I'll ask the Judge to join as classes other incidents of organic brain damage that the military has treated in this manner including the victims of cerebral malaria.