Help! I need a lawyer

danieldresen

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Registered Member
#21
I got another package from the court... Mr.Perry, could I get your email as the file is too large to upload or maybe you could look at it. I am at a point where I am about to give up and have my family utilize life insurance just so they will be fine. Getting tired of everyone screwing me over numerous times. Social security says I am not disabled, the army claims no fault, county says I make to much for help... not in a good place.
 

maparker

Staff Member
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#23
Daniel,

Seek help if you are contemplating suicide. Your family needs you more than money. I have cases that have taken years to get justice.

Mike
 

scoutCC

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Registered Member
#25
I would encourage you to keep fighting them. Their saying you don't have a claim rests upon the LOD, and their determination of EPTS. These aren't facts, and there is room for the court to say they made a mistake by applying the wrong standard. He even highlighted that it requires CUE to determine NLOD, and there is no way they can say they met that standard when the VA made a different determination. If one hand of the government disagrees, how can they argue they met CUE?
 

AFmonkey

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Registered Member
#27
Have you tried a Congressional request in your voting district? It was a simple online request were you give brief concise details of the situation. It's the only thing that worked for me when everyone else said "no". Worth a shot anyways.
 

scoutCC

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Registered Member
#28
Its falling on deaf ears because they are using the wrong standard. One of the docs even straight out said he wouldn't judge it as LOD unless there is a preponderance of evidence.
 

danieldresen

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Registered Member
#29
Yep, failed. I still got booted out and still fighting and now my case is about to get tossed. I need a lawyer who is willing to work on a contingency but I don't know any and I have a very limited time to find one.
 

scoutCC

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Registered Member
#31
From what I've read, failure to state a claim is a rarely granted motion. I agree a lawyer would help you out a ton, and it seems wrong from almost every angle that their failure to provide benefits is the very thing that prevents you from being able to mount an effective case against that same failure. I still think you have a case though, and I think you can express that case well enough for a judge to see the error.

Trust me, I understand the frustration in trying to fight the green weenie. I still think its a noble fight and don't think you should just go limp and let them have their way with you. Sorry if that is vulgar or offensive... well, maybe not sorry... I guess I wish I could speak more eloquently maybe.
 

maparker

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#32
I am getting ready to raise this issue in person with Congressman Walz. The issue being guard reserve entities deny duty related DES evaluations. Congressman Walz is a retired Reserve CSM and co chair of the Congressional Guard Reserve Caucus. I already raised the issue to his staff I but have been sidelined by Of late by my recent family issues.

Mike
 

danieldresen

PEB Forum Veteran
Registered Member
#33
I am going to try one more time but if its dismissed with prejudice... going to the media and suing for my record to reflect fraudulent entry. If they fail to grant it, it will give me lee way to reopen the matter hopefully.
 

TopSecret

PEB Forum Veteran
Registered Member
#34
I wouldn't mind the case being in court for years but... ITS ABOUT TO GET THROWN OUT AND I WONT HAVE ANY JUSTICE.
Daniel,

I am in this fight with you. Don't give up. It is not over until we want it to be over. Get me that second sworn statement and your discharge document, and I'll nail the General by Friday.
 

Jason Perry

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#35
@danieldresen,

I was able to access the motion via dropbox.

There is a lot going on in your case. As it stands, without a response, I think your case will likely be dismissed. But, I see some ways ahead. It seems to me that the LOD (and its procedural processing) are a key issue for your case (not only substantively, but for purposes of your court case). (Note that these are "big picture" ideas....the problem is that it would really take many hours to properly research and draft a full argument).

One way would be to go back to the ABCMR to address the LOD first. (Maybe, request a remand from the Court with a stay until the ABCMR addresses the issue; they can also address the overall results of the PEB, i.e., they can grant relief on your retirement benefits, too). Another way would be to argue that you do have an issue before the Court, that being your entitlement to the pay and benefits of a retiree, and the error is the erroneous LOD and NDR referral. That should be within the jurisdiction of the Court to hear and to grant relief on. I tend to think the Court would not be inclined to rule in your favor directly, but would remand the case anyways (that is how most cases go once an agency decision is found to be "arbitrary, capricious, contrary to law, and unsupported by substantial evidence").

(Now, I have only touched on the bigger pictures; there are lot of underlying arguments and violations of law that need to be identified to "get there." I would be shocked if there were not procedural errors in how the LOD was processed; I am almost certain they misapplied the presumptions. The Wollman case, which is available in the Resources section, discusses many of those issues (even using the lower standards that preceded and were in effect before DoDI 1338.32 and the current DoDI 1332.18).

It is pretty clear that the promotion issues will be dismissed.

I didn't see a scheduling order in the docket report. So, the Rules of Court timing will likely apply. Under RCFC 7.2:
"(b) Motions Under RCFC 12(b), 12(c), 52.1, and 56. (1) Responses. A response to any of these motions must be filed within 28 days after service of the motion."

Have you thought about searching for a law firm with a pro bono program? Typically, large law firms have such programs. While you may not find lawyers with particular knowledge of these types of cases, on the other hand, they may be really large firms with paralegals, scores of lawyers, and the resources to help.

Finally, to echo earlier folks, if you are feeling suicidal, GET HELP! Your health and well being are more important than any of this.
 

danieldresen

PEB Forum Veteran
Registered Member
#36
Wollman... you are a GODSEND! I just read through and referenced it. That alone should defeat this default because crohns is less known than AS and is far more... sporadic in effects.
 

TopSecret

PEB Forum Veteran
Registered Member
#37
@danieldresen,

I was able to access the motion via dropbox.

There is a lot going on in your case. As it stands, without a response, I think your case will likely be dismissed. But, I see some ways ahead. It seems to me that the LOD (and its procedural processing) are a key issue for your case (not only substantively, but for purposes of your court case). (Note that these are "big picture" ideas....the problem is that it would really take many hours to properly research and draft a full argument).

One way would be to go back to the ABCMR to address the LOD first. (Maybe, request a remand from the Court with a stay until the ABCMR addresses the issue; they can also address the overall results of the PEB, i.e., they can grant relief on your retirement benefits, too). Another way would be to argue that you do have an issue before the Court, that being your entitlement to the pay and benefits of a retiree, and the error is the erroneous LOD and NDR referral. That should be within the jurisdiction of the Court to hear and to grant relief on. I tend to think the Court would not be inclined to rule in your favor directly, but would remand the case anyways (that is how most cases go once an agency decision is found to be "arbitrary, capricious, contrary to law, and unsupported by substantial evidence").

(Now, I have only touched on the bigger pictures; there are lot of underlying arguments and violations of law that need to be identified to "get there." I would be shocked if there were not procedural errors in how the LOD was processed; I am almost certain they misapplied the presumptions. The Wollman case, which is available in the Resources section, discusses many of those issues (even using the lower standards that preceded and were in effect before DoDI 1338.32 and the current DoDI 1332.18).

It is pretty clear that the promotion issues will be dismissed.

I didn't see a scheduling order in the docket report. So, the Rules of Court timing will likely apply. Under RCFC 7.2:
"(b) Motions Under RCFC 12(b), 12(c), 52.1, and 56. (1) Responses. A response to any of these motions must be filed within 28 days after service of the motion."

Have you thought about searching for a law firm with a pro bono program? Typically, large law firms have such programs. While you may not find lawyers with particular knowledge of these types of cases, on the other hand, they may be really large firms with paralegals, scores of lawyers, and the resources to help.

Finally, to echo earlier folks, if you are feeling suicidal, GET HELP! Your health and well being are more important than any of this.
Wow! This motion seems like a borderline ethics violation. Did you notice that on pages 13-17 they go on and on about entitlement under 10 USC 1201? They don't discuss 10 USC 1204 at all. Daniel says he has approved LODs for other conditions, and that they weren't included in the administrative record. Daniel clearly states in his complaint, "various medical conditions..." What are your thoughts Jason?
 
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Jason Perry

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#38
Wow! This motion seems like a borderline ethics violation. Did you notice that on pages 13-17 they go on and on about entitlement under 10 USC 1201? They don't discuss 10 USC 1204 at all. Daniel says he has approved LODs for other conditions, and that they weren't included in the administrative record. Daniel clearly states in his complaint, "various medical conditions..." What are your thoughts Jason?
I think the government is wrong on the merits (though, and not meant as criticism of the plaintiff, the Complaint, if drafted differently- and perhaps, the fact that it is a pro se case undermines the credibility....however, I have seen really bad complaints, which, this one is not, drafted by less skilled attorneys- may have been able to foreclose some of the nonsense in the motion to dismiss). Not to say that this resolves favorably...even in meritorious cases, errors are made. (That is why there are appeals to higher courts).

But, I don't see an ethical violation (and, even if I am wrong, it is certainly not one that would "profit" the plaintiff by raising....)

But, let's play that one out. What does that benefit the plaintiff, if true? He can/could complain about that. A predicate to success would likely be showing that the arguments are not reasonably supported by law and/or do not amount to a good faith argument that the law should be changed. (I am very loosely quoting standards under RCFC- which tracks, Federal Rules of Civil Procedure- Rule 11). So, absent winning on the merits, what does the alleged "ethical" violation net the plaintiff? Probably nothing. The counsel for the defendant might face punishment if the violation was shown. Monetary sanctions? Possible....but highly unlikely. So, the only thing that makes really matters is whether the plaintiff is right on the substantive law issues. Raising an unlikely unsuccessful ethics violation? Will likely slow things down, irk opposing counsel, and (more importantly) irk the court. Everyone (meaning the attorneys and judges) dislikes pro se cases. They almost always slow things down, address irrelevant issues, are inefficient, and can devolve into personal attacks. (It is a somewhat weird thing...almost every lawyer deals with "fighting" a case and the other sides position. But, it is "bad form," unhelpful, and not smart to turn every case/interaction with opposing counsel or the court into a place for personal attacks, character assasination, or just raising secondary issues. Fight the merits- that is all anyone cares about, really. Imagine if every case or dispute devolved into personal attacks. Things would go even slower than they already do, and the result would be unlikely to change.


Now, those issues aside, I see quite a lot of issues with the procedural tack taken by the defendant. I am not sure they are "wrong" procedurally, by filing the Administrative Record and then a concurrent motion to dismiss. But, I think there were likely "timing" issues going on....better/more correct in my opinion would have been filing a "Motion to Dismiss or, In the Alternative, a Motion for Judgment on the Administrative Record." What they have done is to set up a round of briefs on the Motion to Dismiss, and then, if not granted, another round of motions and briefs on the parties' likely cross motions for Judgment on the AR. I know why this happened- it is because of the pro se nature of the case (though, this is not to say that an unskilled attorney filings would not resulted in the same....essentially, the government, in my opinion, is not taking the case very seriously). Some issues would have been resolved by a more comprehensive Complaint.
 

Jason Perry

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#39
They don't discuss 10 USC 1204 at all
Just circled back and looked at the Complaint. There is only mention of 10 USC 1201 and 1203. So, no real fault can lie with the government for not addressing what was not raised (not sure that 1204 would matter much here, but, I am only addressing the specific question).

A problem with the complaint is its brevity and "non-standard" format. (On the other hand, I have seen complaints, even using more "standard" formats, failed to do as well as this one, by not even cogently asserting jurisdiction).

I don't have a lot of free time at the moment. But, at some point, I will post about the "mechanics" of filing a complaint.
 

danieldresen

PEB Forum Veteran
Registered Member
#40
True true... I only had 3 pre law classes. Still learning the whole process. Got 2 cases going on. The other in state court... I am letting my insurance company get their locks first and use that case verdict as additional evidence against the defendant. Learning how to draft a motion to compel since that guy is being a weasel and isn't communicating.
 
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