Help! I need a lawyer

danieldresen

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#1
The us is trying to dismiss my case against them. If there is a lawyer versed in cases involving the Tucker Act I will gladly upload my complaint and see what we can do so I can have my case go forward. NGB is really pissing me off. Any help is appreciated.
 

Jason Perry

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#3
Did you previously go to the BCMR? (My read of the complaint is that you never had a PEB, right?)
 

scoutCC

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#4
Failure to state a claim upon which relief can be granted. Huh.

http://www.likelihoodofconfusion.com/legal-publications-ron-coleman/motions-dismiss-under-frcp-12b6/

Gives out some examples of what these look like and what responses look like.

Well you said Title 10 allows you to have a claim, however if the DoD says you aren't service connected then Title 10 won't apply and hence no claim.

I'd respond that the VA service connected your injuries, that they were present at the time of discharge, and so you do indeed have a claim under Title 10 its only the NGB's failure to follow regulation and law that would prevent your claim. Surprised you went this far without a lawyer, so heck, might as well give you a perspective to maybe continue on your path. I'm fully for the democratization of the law process, but yeah, I'd probably have gotten a lawyer before this point.
 

danieldresen

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#5
No one will take the case locally without a retainer, which I can't afford. I would love to get one on contingency. I went through ABCMR, they kicked it back to state, state denied relief, which I'd wrong because I am already separated. I was in the process of a NDR PEB, again, illegal and ft. Lewis saw it in my rebuttal and paused the PEB. Due to the lapse in time, my state separated me.
 

Jason Perry

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#6
Would really need to know what the motion to dismiss states. Can't guess as to the issues without knowing what the government is arguing.
 

danieldresen

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#9
I am drafting my dismissal response now, but without much of anything to go on besides what was mailed and uploaded into pacer... I have no idea what I am doing... any tips or insight is appreciated.
 

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Jason Perry

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#10
I don't know why they didn't send you the actual motion, but you need to see that. I would call the attorney (I know her, she has been on the other side of several of my cases) or the clerks office and ask for a copy.
 

danieldresen

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#12
I asked for the whole motion... that's it. She came off as rude. Really testing my patience on this matter after having been cooperative thus far.
 

Jason Perry

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#13
Hard to tell what is going on here- I just confirmed in the Court's ECF system that only one page was filed. From what I can tell from the docket history, the Government was supposed to file an "answer" to your complaint by 5 MAR. Instead, on 6 MAR, they filed what appears to be the cover page of what would normally precede a motion. There is no motion filed.

I am not giving legal advice. I am only giving my thoughts. Seems to me that the government failed to file its answer and also did not file a motion (if you look at the Rules of Court of Federal Claims, there are specified contents for a motion- that filing did not even come close).

So, you could respond with a couple of motions (one to strike, the filing or in the alternative to deny and you could ask for an entry of judgment in your favor as the government has not filed an answer).
 

Jason Perry

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#14
Just had another thought- strikes me that it is likely an error on the clerk's office part in only uploading the cover page. I realized that, as a case with a pro se party, neither is using ECF (I think). So, the government mailed a copy to the Clerk's office, and only one page got uploaded (and, perhaps mailed to you). It may not be the clerk; it could have been an error by a paralegal. I just have a hard time thinking that what was actually intended to be filed was a cover page without an actual motion.
 

danieldresen

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#15
I got the hard copy... still only one page so I prepared a couple motions. Court was closed on the 5th for weather... guess it was too cold for them even though they had us training in snow without heat... go figure.
 

scoutCC

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#16
I like your comments about it being an obvious bid for time. I would add to that in a request for summary judgment. Some statement of sympathy for the government counsel's need for additional time, since you've been looking at the case for even longer and can't find a means to explain the obvious failure to follow the law or regulations either, and this latest motion which is so obviously lacking in merit that it they could not cobble together a single sentence in support of the motion that it is a sure sign that an explanation is not going to be forthcoming.

I might be a smart ass though. The examples of lawyer write ups aren't shy about making digs, but I imagine they have a better idea of their audience than I do so they have a better idea of what digs are appropriate and which are not, so that goes double for me not giving actual legal advice. I'm just glad you're putting up a fight.
 

danieldresen

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#17
Oh they have a small portion listed in ECF as to the rule of law used. The one rule stated that they can legally file a motion to extend the deadline of an answer by 10 days. The second rule was a lack of a specified remedy. 33,500$ in severance at grade of e-5 or placement on PDRL at the grade of e5 are pretty specific with a date of rank of 28 May 2014, when I was legally offered and subsequently, illegally flagged. I was very specific.
 

Jason Perry

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#18
There has been a lot of discussion so far in this thread of several issues that only are tangentially relevant. I hate to say this but, (in some respects, it should be obvious/apparent), some issues and cases really need to be addressed by an attorney.

(Sometimes, I get the feeling that folks- perhaps with some measure of reason- feel like they should be able to represent themselves and get a good result. Television and movies seem to make people believe that just being able to argue a point and being "right" is a recipe for success. It is somewhat strange to me for these reasons; people can understand the general problems with, for example, cars. Or for health issues. But, unless you are a mechanic or a doctor, most folks do not try to fix their own transmission or the bone sticking out of their broken leg. Is it possible for folks to do this? Yes. It is likely to work out well? No. I also get, and understand the problems with paying for legal services. As to me, personally, I wish I was wealthy and could just take on every case of an injustice and fight it out for folks. There are tons of cases that need legal help from an attorney. But, the reality is that money does not fall out of the sky. The practice of law is my job; I am not rich; I have steep student loan bills every month to pay (along with the bills that everyone has to pay), and, while I would love to take cases without guaranteed payment, this is not a feasible business model, generally. Unfortunately, it just doesn't work that way. I have tried that model before and have sunk many hundreds of hours into cases that did not return a cent).

This area of law is not rocket science. At the same time, taking me, personally, as an example, I went to law school and have practiced in this very narrow area of law for more than 9 years (I have 14 years as an attorney). On my last check with the Court of Federal Claims website, I am by far the most experienced practitioner in this area of law. (I have more than 29 cases before the Court; this is a multiple of cases more than any other practitioner before the Court, probably by a factor of 300%).There are very few attorneys nation-wide who practice in this area of law at all. Much fewer who practice in all levels of these cases (from MEB, PEB, to Post-PEB appeals, VARR's, to BCMR applications, and finally to appeals in Court; I actually think I am the only attorney who practices regularly across all levels of DES cases). None of this is to make me sound great. It is just an observation that many folks think the answers or issues are "easy." They are not (but, mainly because it takes a solid understanding of many rules- none of which are very complicated- along with experience with the issues and an ability to write in a way that addresses the issues).

That said, I don't think the draft motion in the earlier post is horrible by any means. It is by far not inclusive of all of the issues that should be raised in a "complete" motion (my thoughts are that it should be much longer, comply with the RCFC for listing the arguments, facts, citations of law, contents, etc.- though, some of these should be excused because of the pro se filing...that said, I think, with "leniency" in pro se filings, it is possible to discern the arguments; I can definitely see the "path" to a much stronger case for a "win" with a fuller motion and brief). I would be very happy if my thoughts about the "need for an attorney" are wrong and you prevail. I think you have at least hit on most of the important "big picture" issues.

I hope it works out well, for you @danieldresen . On the issues, I think you should prevail. As it stands, I think the government has not filed a valid motion for dismissal and has not answered the complaint. This only can work to your favor.
 

Jason Perry

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#19
Oh, one other thought- promotion is almost a loser in the CoFC....I have a current case where I am fighting for promotion after return to duty, but, even in my case, it is not likely to prevail initially. My case is of very limited application based on narrow statutory issues that are not present in your case.
 

danieldresen

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#20
I don't expect promotion to prevail at the court level. If they put me on the PDRL though, as I was still on a valid EPS list, the promotion happens a day before the retirement orders or severance. I understand that many cases, a lawyer is needed. Heck, I wish I had one for my other case but... it seems even fewer practice in construction defect law. I just hope everything does work out. Sending out what I have today so I can meet the time line head on.
 
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