Petition for Writ of Certiorari — Jossi v. Brown

93-857

No.

IN THE

Supreme Court of the United States

Ocroser ‘Tenu, 1993

Frep A. JOssI

Petitioner,

v.

JESSE Brown, Secretary for Veterans Affairs;

THE DEPARTMENT OF VETERANS AFFAIRS;

THe UNITED STATES OF AMERICA, and

JANET RENO, Attorney General of the

UNITED STATES,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Petrrion For Writ OF CERTIORARI

i nesenmmnteetined —

i tenteetieieannn —_

Frep A. Joss!

Pro Se

4512 S.E. Monroe Street

Milwaukie, Oregon 97222

503/654-8986

(| ety

1. Whether the Ninth Circuit Court of

Appeals, District Court and

Veterans Administration, were

correct in holding that my world

War II military ARMY service to

the United States and resulting

years asa prisoner of war of the

Nazi SS, did not render a service

and/or furnish any "CONSIDERATION

TO THE SECRETARY [of U.S.

Department of Veterans Affairs

{VA}]* (an agent of the wUnited

States), which consideration, if

furnished, would establish an

implied-in-fact contract?

Whether my Honorable Discharge

from the Army, present receipt of

VA benefits because of injuries

which I suffered during world war

II while a prisoner of war of the

Nazi SS, constitutes PRIMA FACIE

Il

EVIDENCE of the *CONSIDERATION*"

which I furnished to the VA

Secretary i.e. the agent of the

United States of America?

Whether the absolute denial of

access to justice and to

meaningfully petition the

Government for redress of the

wrongful taking of my private

money which I spent in reliance on

the Government's promise/contract

to conduct a hearing, violates my

First Amendment right to redress

grievances and my Fifth Amendment

right to Due Process of Law,

guaranteed to me by the United

States Constitution?

Whether the Ninth Circuit Court of

Appeals, District Court and

Veterans Administration, were

correct in holding that the VA

"EQUITABLE RELIEF* statute [38

U.S.C. § 210(c)(2)(1989)], could

mot "fairly be interpreted as

mandating compensation by the

Federal Government for the damage

sustained"?

Whether as a matter of Ss0CIAL

POLICY, the lower courts were in

error by failing to determine that

by my military World War Ir

service and years as a prisoner of

war of the Nazi SS, that I

rendered a service to the United

States of America, and thereby

furnished consideration to the

agent of the United States of

America known as the Secretary cof

the U.S. Department of Veterans

Affairs. Can any nation long

survive which fails to perceive

the military service of its

defenders, as a "service" and

"consideration" to that nation?

IV

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..I-III

SmEds CH COMERS D sc ccc ccc ccc cssscseses Iv

TABLE OF AUTHORITIES.............. V-viI

PEO s oes ces secascseses VII-VIItI

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS....... IX-XV

Sameeee GO THE CARB. . cc ccciccessess 1

CPE S066 0666 bea Deck ee Cheanueues 5

PEE Ks icant entesesnne "A" and "B*

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

PES Pe 6 ko cee sb bededincscsscenr 12

Fifth Amendment/Due Process..... 12,13

CASES

Bell _v. Hood,

oy Ge me | ee! ere 12

Marbury vy. Madison,

5 0.8. (1 Cranch) 137

Gee ee eee ck aewn'e 12,13

United States v. Testan,.

ee »

Winslow vy. Walters,

815 F.2d 1114

‘es | 3S.) Ee eae 13

STATUTES

28 U.6.C. 8 2EOtH) TH) (2) 2. wc cccccus g

20 Web Se HB BASIS Ge ks ck vee weeswveos 6

ee eas I ss ok no deo ewes 2,8

BO Wallets. WUE «ccc ccacecvder 4,11

Be WaweGs te POs bce bt eu cseeuces 2,8

Be Wes BOT ELG 6 on oc ee hoes ees a

VI

REGULATIONS

3B C.P.R. 8B 3.103... ccccccccccces 2,8

38 C.F.R. § 19.159 Rule 59.. 2,3,10

38 C.F.R. § 19.169 Rule 69......... .

LEGISLATIVE MATERIALS

ABOVE CITED VA *EQUITABLE

RELIEF STATUTE" 38 U.S.C.

§ 210(c)(2)).Senate Report

No. 1727, Oct. 13, 1966

[To accompany H.R. 11631]

Cong. Record Vol. 112 (1966)....... 7

Vil

Opinions Below/Decisions To Be

August 16. 1993 ORDER upon Petition

for Rehearing and Suggestion for

Rehearing in Banc, United States

Court of Appeals for the Ninth

Circuit.

May 24. 1993 DECISION UPON APPEAL:

United States Court of Appeals for

the Ninth Circuit 92-36635.

July 15. 1932 ORDER upon written

objections to the proposed findings

and recommendations NO. 91-307 JE.

May 21. 1992 FINDINGS AND

RECOMMENDATIONS/ORDER: United States

District Court for the District of

Oregon #91-307-PA.

PROVISIONS WHICH CONFER JURISDICTION:

UNITED STATES CONSTITUTION:

Article III, § 2.

Vill

First Amendment

Fifth Amendment

Federal Question: 28 U.S.C. § 1331

The Tucker Act : 28 U.S.C. § 1346

FIRST AMENDMENT:

"Congress shall make no law

respecting the establishment of

religion, or prohibiting the free

exercise thereof; oor abridging the

freedom of speech or of the press;

or the right of the people peaceably

to assemble and to petition the

government for redress of just

grievances."

FIFTH AMENDMENT:

"No person shall be held to answer

for a capital, or other infamous

crime unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in :

actual service, in time of War or

public danger; nor shall any person

be subject for the same offense to be

twice put in jeopardy of life and

limb; nor shall be compelled in any

criminal case to be a witness against

himself, 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."

STATUTES

AUTHORITY AND DUTIES OF THE ADMINISTRATOR

38 U.S.C. § 210(a)(b) (1) (1989):

{NOW: 38 U.S.C § 303]:

APPOINTMENT AND GENERAL AUTHORITY OF

ADMINISTRATOR:

X

“(a) The Administrator of Veterans'

Affairs is the head of the Veterans'

Administration. The Administrator is

appointed by the President, by and

with the advice and consent of the

Senate"

“(b) (1) The Administrator, under the

Girection of the President, is

responsible for the proper execution

and administration of all laws

administered by the Veterans'

Administration and for the control,

Girection, and management of the

Veterans' Administration."

38 U.S.C. § 210(c) (2) (1989):

{[NOW: 38 U.S.C § 503]:

ADMINISTRATIVE ERROR;EQUITABLE RELIEF

"If the Administrator determines that

benefits administered by the

Veterans' Administration have not

been provided by reason of

administrative error on the part of

the Federal Government or any of its

employees, the Administrator is

authorized to provide such relief

on account of such error as the

Administrator determines equitable,

including the payment of moneys to

any person whom he determines

equitably entitled thereto."

WARTIME DISABILITY COMPENSATION

38 U.S.C. § 310 (1989):

[NOW: 38 U.S.C § 1110]:

BASIC ENTITLEMENT

"For disability resulting from

personal injury suffered or disease

a

Xl

contracted in line of duty, or for

aggravation of a preexisting injury

suffered or disease contracted in

line of duty, in the active military,

naval, or air service, during a

period of war, the United States will

pay to any veteran thus disabled and

who was discharged or released under

conditions other than dishonorable

from the period of service in which

said injury or disease was incurred,

or preexisting injury or disease was

aggravated, compensation as provided

in this subchapter, but no

compensation shall be paid if the

disability is the result of the

veteran's own willful misconduct."

BOARD OF VETERANS APPEALS

38 U.S.C. § 4002(c) (1989):

(NOW: 38 U.S.C § 7102(c)]:

ASSIGNMENT OF MEMBERS OF BOARD

"A section of the Board shall make a

determination on any proceeding

instituted before the Board and on

any motion in connection therewith

assigned to such section by the

Chairman and shall make a report of

any such determination, which report

shall constitute its final

disposition of the proceedings."

38 U.S.C. § 4005(a) (1989):

(NOW: 38 U.S.C § 7105(a)]:

FILING OF NOTICE OF DISAGREEMENT AND

APPEAL

" |. . . Each appellant will be

accorded hearing and representation

rights pursuant to the provisions of

this chapter and regulations of the

Administrator."

38 u.s.c. § 4007 (1989):

(NOW: 38 U.S.C § 7107]:

XI

DOCKETING OF APPEALS:

"All cases received pursuant to

application for review on appeal

shall be considered and decided in

regular order according to their

places upon the docket;... "

REGULATIONS :

PART 3 - ADJUDICATION

ADMINISTRATIVE

38 C.?.R. § 3.103: BHE— PROCESS —-

PROCEDURAL AND APPELLATE RIGHTS WITH

REGARD TO DISABILITY AND DEATH

BENEFITS AND RELATED RELIEF

"(a) Statement of policy. Proceedings

before the Department of Veterans

Affairs are ex parte in nature. It

is the obligation of the Department

of Veterans Affairs to assist a

Claimant in developing the facts

pertinent to his or her claim and to

render a decision which grants him or

her every benefit that can be

supported in law while protecting the

interests of the Government. This

principle and the other provisions of

this section apply to all claims for

benefits and relief and decisions

thereon within the purview of this

part.

"(c) Hearings. Upon request a

Claimant is entitled to a hearing at

any time on any issue involving a

Claim within the purview of this

part... *

Xl

PART 19 - BOARD OF VETERANS APPEALS

HEARINGS

"38 C.F.R. § 19.159 Rule 59: SCHEDULING

AND NOTICE OF HEARING

"(a) General. To the extent that

facilities permit, hearings will be

scheduled at the convenience of

appellants and their representatives,

distance involved. .. "

(b) Notification of hearing. When a

hearing is scheduled, the person

requesting it will be notified of its

time and place, and of the fact that

the government may not assume any

expense incurred by the appellant,

the representative or witnesses

attending the hearing. The appellant

or the representative has a period of

60 days from the date of the letter

of notification in which to request a

different date for the hearing. Only

one request for a change of the date

of the hearing will be granted during

the 60-day period, and this will be

stated in the letter to the appellant

and/or the representative at the time

a response is given in regards to

scheduling a hearing.

hearing will become fixed

apd cannot be changed,

except as - provided in paragraph (c)

of this section. FAILURE by the

appellant or the representative

TO APPEAR at the hearing as

scheduled. will result in the

teil

XIV

continuation of the appellate

: q

(c) Extension of time. After a

hearing date has become fixed, an

extension of time for appearance at a

hearing may be granted for good cause

shown . . . Zhe xequest for

extension should be in writing

and must be filed with the

Chief of the Hearing Section.

Ordinarily, hearings will not be

postponed more than 30 days.

Examples of good cause include the

following: iliness of the appellant

and/or representative, difficulty in

obtaining records, and unavailability

of a witness."

(emphasis added)

"38 C.F.R. § 19.169 Rule 69: RECORDING OF

HEARINGS

An appellant or representative may

record the hearing with his/her own

equipment. Filming, videotaping or

televising the hearing may be

authorized provided a consent is

obtained from the appellant and made

a matter of record. In all such

Situations advance arrangements must

be made with the Chief of the Hearing

Section. .."

LEGISLATIVE MATERIALS

RE: ABOVE CITED VA “EQUITABLE RELIEF

_STATUTE" 38 U.S.C.§ 503 (formerly §

210(c)(2)). Senate Report No. 1727,

Oct. 13, 1966 [To accompany H.R.

11631] Cong. Record Vol. 112 (1966)

"This section amends section 210 of title

38, United States Code, by adding a new

SS

XV

paragraph. . - The amendment ..- - would

authorize relief IN ANY SITUATION where

to deny a benefit to which a veteran

. More specifically, this section would

authorize the Administrator to take

REMEDIAL action iN ANY CASE where

benefits or payments UNDER ANY LAW

administered by the veterans'

Administration have been denied, or

otherwise have not been provided, by

reason of administrative error on the part

of the Government or any of its employees.

_. This section WILL ASSURE

an act of OMISSION os.

COMMISSION, does not result in

Congress."

I am a World War It Army

veteran, who was captured in North

Africa during the early stages of

World War II, by General Rommel's

German Afrika Korps forces. After

capture, I was imprisoned for years

in a Nazi SS Prisoner of War camp,

where I was beaten, starved, and

otherwise abused for years, until I

finally escaped shortly before the

end of the war.

On June 7, 1990, I was

scheduled for a hearing in

Washington, D.C. before the U.s.

Department of Veterans Affairs (VA)

Board of Veterans Appeals (BVA), as

per my request and my right. The

hearing was set for October 31, 1990,

at 2:00 p.m. in the Riggs bank

building. The government did not

show for the hearing, thereby

directly causing me to waste

thousands of dollars of my own money

in travel, lodging, food costs, etc.

The following VA laws, regulations,

etc., apply to said VA hearing, and

the manner in which the VA was

required to conduct the matter, but

failed.

Under VA statute [38 U.S.C. § 310

(1989)] concerning basic entitlement

to veterans benefits, I am eligible

for said VA benefits and, in fact, am

"service-connected"* for various war

related disabilities.

Under VA statute and regulation

[38 U.S.C. § 4005(a) (1989) and 38

C.F.R § 3.103) I am entitled to a

hearing at any time on any issue

involving my VA clain.

VA regulation [38 C.F.R g

19.159(a), BVA Rule 59) requires that

Board of Veterans Appeals (BVA)

hearings "will be scheduled at the

convenience of appellants -- - with

consideration of the travel distance

involved", which, in the instant

case, is 3,000 each way.

Significantly to the instant

case, VA regulation (36 C.F.R &

19.159(b), BVA Rule 59] also provides

that Board of Veterans Appeals (BVA)

hearings “hecome fixed and cannot be

changed". and that failure of the

veteran (what about the Government?)

"to appear at the hearing 48

scheduled, will result in the case

being forwarded to 4&4 Section of the

Board for continuation of the

appellate process".

VA regulation [38 C.F.R 3

19.159(c), BVA Rule 59] concerning

"Extension of time" requires that all

requests for extensions of time

*should be in writing and must be

filed with the Chief of the Hearing

Section", and will only be postponed

Pr

for "good cause" such as “iliness of

the appellant*".

VA statute [38 U.8.C. §& 4007

(1989)] required that BVA hearing at

issue herein: "“"ghall be considered

and decided in regular order

according to their places upon the

Gocket".

VA statute [38 U.&8.C. § 4002(c)

(1989)] provides that the BVA “shall

make determination on any proceeding

instituted before the Board... *

VA regulation {38 C.F.R 7

19.169(c), BVA Rule 69] provides that

I may videotape my BVA hearing,

"provided .. . advance arrangements"

are made with the Chief of the

Hearing Section. a per the

requirements of said regulation, I

had made the required arrangements to

videotape my hearing.

ARGUMENT

The U.S. Department of Veterans

Affairs (VA) argues that the hearing

location was changed at the last

minute, and admits that I was not

notified, regardless of the VA's

knowledge that I (and my 3 witnesses,

etc.) were travelling a distance of

more than 20,000 miles for said

hearing.

In that regard, in response to 4

letter (see: Appendix "B", pages B-1l

through B-4) dated November 20, 1990 ,

from Congressman Ron Wyden to the

Chairman of the VA Board of Veterans

Appeals, the VA Secretary admitted by

letter teces Appendix "B" pages B-5

through B-8) dated December 27, 1990,

that the "problems" were “the Board's

fault* Significantly, the Secretary

4id not comment on why the hearing

location was changed, even though the

VA knew that neither I anor any

representative had been notified. In

Rep. Wyden's letter, he specifically

indicated:

"I am requesting that Mr. Jossi

be given an opportunity to

appear before the BOVA before

the end of this year. Mr. Jossi

and Mr. Stanton have indicated

they will travel to Washington,

D.C. However, I would suggest

that they should not be required

to pay the travel or lodging

costs, as they are not at fault

for the cancellation of the

October 3lst hearing."

= sl

To date, I have not had another BOVA

hearing. In the above cited letter

from the VA Secretary, he indicated:

"Additionally, he [Jossi] was

informed that there was no legal

authority under which the Board

of Veterans Appeals or VA could

pay for any of the expenses he

or Mr. Stanton incurred as a

result of his hearing [which did

not take place] in Washington.*

The record is clear before the

lower Courts, that I asserted as

relevant "legal authority", the VA

EQUITABLE RELIEF statute, 38 U.S.C. §

210(c) (2) (1989), which provides, in

part, as follows:

’

7

"If the Administrator determines

that benefits administered by

the Veterans' Administration

have not been provided by reason

of administrative error on the

part of the Federal Government

or any of its employees, the

Administrator is authorized to

provide such relief on account

of sucb error as the

Administrator determines

equitable, including the payment

ef moneys to any person whom he

determines equitably entitled

thereto."

Significantly, the Legislative

History (see: Senate Report No. 1727,

Oct. i3, 1966 [To accompany H.R.

11631] Cong. Record vol. 112 (1966))

of the statute appears, as follows:

“This section amends section 210 of

title 38, United States Code, by

adding a new paragraph. . .- The

amendment . .-. - would authorize

relief IN ANY SITUATION where 4p

which a veteran is equitably

‘ . More

specifically, this section would

authorize the Administrator to take

REMEDIAL action IN ANY CASE where

benefits or payments UNDER ANY LAW

administered by the Veterans'

Administration have been denied, or

otherwise have not been provided, by

reason of administrative error on the

part of the Government or any of its

employees. . . This section WILL

ASSURE that governmental

administrative error. past or

future. either through an act of

OMISSION ex COMMISSION, does

not result in the denial of

benefits provided by Congress."

The VA and lower Courts ignored said

"legal authority" to correct said

governmental administrative error.

"Entitlement to money damages in

actions brought under the ACT depends

upon whether any federal statute "can

fairly be interpreted as mandating

compensation by the Federal

Government for the damage sustained"

United States v. Testan, 424 U.S.

392, 400 (1976).

The VA and the lower Courts also

failed to understand that in keeping

with the above cited 38 U.S.C. § 310

(1989), 38 U.S.C. § 4005(a) (1989) and

38 C.F.R § 3.103, that my honorable

military wartime service was, and is,

both a "service" and "consideration"

which I rendered to the Secretary,

because as under 38 U.s.C. §

210(a)(b) (1) (1989) the Secretary is

an agent of the United States of

America, therefore as the

agent/representative of the United

States of America, the Secretary did,

in fact, reap both a "benefit" and a

"service" from my military service.

Accordingly, my Honorable Discharge

and present receipt of VA benefits

constitute PRIMA FACIE EVIDENCE of

the "CONSIDERATION" which I furnished

to the VA Secretary i.e. the agent of

the United States of America.

Throughout the history of my case

since the hearing did not take place

during October 3l, 1990, I have been

absolutely frustrated by my absolute

inability to cause the VA and lower

courts to understand that my clear

rights under the above cited VA

statutes and regulations, were

violated. Regardless of the mandate

10

of above cited 38 C.F.R § 19.159(a),

BVA Rule 59, the VA appears to have

totally ignored the travel distance

involved, as well as any

consideration of my "convenience".

The VA ignored the fact that my

hearing was ina "fixed and cannot be

changed* status, as per 38 C.F.R §

19.159(b), BVA Rule 59, apparently

believing that it could allegedly

change my hearing location only

minutes of seconds prior to the

hearing.

The VA totally failed to

articulate a "good cause" reason (or

any reason at all for that matter)

for changing my hearing location at

the last minute, in contrast to the

provisions of 38 C.F.R § 19.159(c),

BVA Rule 59.

Finally, even after my hearing

qdid not take place, and Congressman

Wyden requested that I be given the

———————

11

opportunity prior to the end of 1990

to have a BOVA hearing, and that I

should not be require to pay the

associated costs, the VA failed in

its mandate under 38 u.S.c. § 4002(c)

(1989)] which requires that the BVA

"shall make determination on any

proceeding instituted before the

rr arn To date, 3 years

later, I have still not had a BOVA

hearing and a decision has not been

made concerning the matters at issue

therein.

Also significantly, the VA has

ignored the mandate of 38 U.S.C. §&

4002(c) (1989), which requires that

the BVA "shall make determination on

any proceeding instituted before the

Boaré ..- *

Concerning my BVA hearing which

4id not take place, the VA has

violated its own above said statutes

and regulations with what it believes

12

to be total impunity, and the lower

Courts have done nothing to uphold

the law or my rights. My First

Amendment right guaranteed by the

U.S. Constitution to seek redress of

grievances, as well as my Fifth

Amendment right to "Due Process of

Law", have been ignored, and tI

continue to be outraged by the

resultant absolute denial of access

to justice. Certainly, I should not

be denied the protections of the same

United States Constitution which I

was injured and brutalized during

World War II, defending!

Additionally, an action for

damages arising out of alleged fourth

and fifth amendment violations should

not be dismissed for want of federal

jurisdiction. Bell v. Hood, 327 U.S.

678, 684 (1946). The VA and lower

Courts ignored the Marbury premise

that for every right there must be a

13

remedy. Marbury v. Madison, Ss w.8.

Cranch) 137, 163 (1803). “To what

purpose are powers limited, and to

what purpose is that limitation

committed to writing, if these limits

may, at any time, be passed by those

intended to be restrained?" Marbury

v. Madison, 5 U.S. (1 Cranch) 137,

176 (1803). Action challenging the

constitutionality of the V.A.'8

procedures, claiming that the agency

aia not provide him with a hearing

before changing his disability

rating, held that 38 U.S.C. §$211(a)

(now § 511) gid not bar review of

claims that the procedures of the

vV.A. violate the due process clause.

Winslow v. Walters, 815 F.2a4 1114

(7th cir.1987). TI assert that the

VA's practices and procedures

evidenced by this case, have violated

my right to due process of law, as

14

well as my right to seek redress of

grievances.

Something has to mean something

in America. If we as a nation can not

or will not ensure that America's

injured defenders have the same

meaningful access to justice enjoyed

by those who violate the rights of

Society, the seed will have been sown

to unravel our national Social

Policy. As I once testified before a

U.S. Congressional Hearing in

Washington, DC: » . . . what should

I tell my grandchildren who want to

enlist in the Armed Forces?"

The “service*" which I rendered

the "United States" and its agent:

"the Secretary of the VA", are a

matter of record in this case. The

legal "consideration® is also

apparent. Please do not permit the

VA to bankrupt the patriotic "Social

Policy" of America.

eee

15

DATED this 15th day of November, 1993.

respectfully submitted,

A 7 Jd

tf (Pyrn

rred A. Jossi’

pro se

4512 S.B. Monroe Street

Milwaukie, Oregon

$7222

2

503/654-8986

A

:

7

;

a