Help! I need a lawyer

danieldresen

PEB Forum Veteran
Registered Member
#41
Thank you for your assistance Jason. Any help you provide is HIGHLY appreciated. Just waiting to see where things go now. It would be nice if both parties in law could argue... without personal attacks. I just don't see that type of judicial arrangement in my lifetime.
 

TopSecret

PEB Forum Veteran
Registered Member
#42
Jason thank you for discussing the merits and whether a tactic is worth it. I think we always come back to that no matter what stage of the process we are in, and it is helpful to be reminded of it when things get emotional.

Thanks for the fine point on what Daniel actually raised in his complaint. You are correct, he only mentions 1201 and 1203. I didn't really process that late last night. I guess I was really caught up in the fact that the administrative record might have been culled to only discuss the one condition that got him non-duty discharged (a VA Rated condition).

So going back to tactics. Daniel already responded to the motion. I haven't read that response. And I have ZERO experience in court and am not a lawyer, so I'm asking these questions as a learning exercise for all. Daniel has two approved LODs. Both of those LODs should be unfitting, and should be rated at higher than 30%. So how about amending the complaint to include 10 USC 1204 for those LODs to just side step the whole controversy over his Chrohn's.

Daniel did you post your response anywhere?
 

danieldresen

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Registered Member
#43
I haven't yet. I can when I get home. They received my amended opposition to the motion to dismiss which includes the lods and that I was wrongfully denied an MEB on numerous occasions.
 

danieldresen

PEB Forum Veteran
Registered Member
#45
Pretty sure everything I outlined and even shut down on the defense will give the judge something to digest... and hopefully gets the motion dismissed and has my request for default looked at again... as there is no answer.
 

Jason Perry

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#46
I am busy with a couple of motions myself, so don't have a lot of time. Here are some quick comments that caught my eye that are pretty important issues:

"The complaint states a claim for declaratory and injunctive relief under 10 U.S.C. § 1203"

This is troublesome.... remember, the Court of Federal Claims has jurisdiction over MONEY CLAIMS....there is no direct equitable relief available in CoFC (the court can fashion equitable relief after finding money due, but absent entitlement to money damages, the court will not have subject matter jurisdiction....I quoted the statute which applies, below). This statement is very risky.

"and the plaintiffs have standing to bring their claims, because CALIFORNIA ARMY NATIONAL GUARD illegally plaintiff's rights to a medical evaluation board and a timely line of duty."

This is very problematic. Potentially disastrous. (But, there may be a saving grace).

Take a look at the jurisdictional statute for the Court of Federal Claims:
https://www.law.cornell.edu/uscode/text/28/1491

28 USC 1491:

"(a)
(1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
(2) To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just." (Emphasis added).

The bold part is the important point....The claim has to be against the United States. I have seen several cases where people allege failures against National Guard officials and they have been dismissed. (This may sound like circular reasoning, but, a claim against a State National Guard will fail....but, remember, the National Guard has "dual" status as a State and Federal entity...so, National Guard "actions" that violate Army or DoD or Air Force regs, or Federal statutes can support jurisdiction. The key is in the wording). The good thing is that your complaint is styled as Dresen v. United States. But, depending on how the Court views your statement, it may be bad for your case. As a pro se party, the Court may read your filings favorably enough that this is not a disaster.

Another point, this language is something to be somewhat concerned about: "illegally plaintiff's rights to a medical evaluation board and a timely line of duty" The problem is that this language, where it is found discussing your argument that the court does have jurisdiction (it is not a standing issue, but, I would think that a reader would assume you really meant jurisdiction) is that it suggests, again, equitable relief and does not focus as much as it could on claims for money damages. Better would be something like, "the Army has failed to pay plaintiff money due to him for military disability retirement."

It was probably a good idea that you asked for a remand.

I don't mean to come off as sounding overly negative. I spend a lot of time trying to shred opposing counsel's arguments, so it is second nature to try to identify weaknesses.

What to do, now? You could let it ride. Or you could file an amended response. If you can find a pro bono program at a law firm, or have a reasonable shot at finding representation, you could ask the court for a brief stay so that you can retain counsel.

Need to get back to work. Hope my thoughts helped.
 

USAFRet92010

PEB Forum Veteran
Registered Member
#47
The waiting and getting negative results can drive anyone up the wall. It is a hard fight but that is just the way it is. It should not be this difficult to get a claim approved.
 

danieldresen

PEB Forum Veteran
Registered Member
#48
Lets put it this way... every pro bono program I have reached out to said no... because I am not homeless, not a drug addict, not convicted, not facing conviction... odds are stacking against me but... I will be homeless soon now that the mortgage company has breached a loan modification agreement and is still trying to foreclose. All I can do now is wait. Half tempted to not waste any more money in paying a mortgage since they are trying to foreclose when the agreement stated that the past due balance would be rolled into an inactive 2nd mortgage so that once the new mortgage is paid, the second mortgage would then be paid subsequently. But since my luck is nothing but bad... they ignored the agreement and I get a foreclosure notice today... its sad to think I would have been better off not living back in August when I had insurance coverage. Now I have nothing, and will lose what little I do have. It is pissing me off.
 

danieldresen

PEB Forum Veteran
Registered Member
#49
The US is asking for a FURTHER extension in time to respond. I guess the points I made were valid enough to cause pause. What can I do in the event they fail to respond by the 6th, the attorney in question will be out of office so I do believe this will be the case.
 

danieldresen

PEB Forum Veteran
Registered Member
#50
Would I be able to file a response and ask for preliminary injunctive relief in the form of INCAP pay that was due from 2012-2014? Can INCAP pay be back paid?
 
#53
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.


Good luck, my experience with US Army doctors was nothing but medical ethics problems. Seems they do not really care about enlisted soldiers.
 

Jason Perry

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#54
Good luck, my experience with US Army doctors was nothing but medical ethics problems. Seems they do not really care about enlisted soldiers.
That is a separate issue. (The original poster ended up with a favorable outcome.) Really, I have seen the military as being fairly "equal opportunity" as far as issuing bad decisions for all ranks. Oddly, I have also seen really bad decisions for the most high speed folks- I have had client's who were ODA Delta, BUDs, SEALs, etc., get bad decisions and have seen cooks, admin folks, etc., get good results. I have seen lower enlisted get good results and high ranking (as far as Brigadier General Selects) get poor results.

Bad decisions are often fairly distributed among the range of folks in my experience.
 
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