VA Cited for Illegal Prosecutions/Suicides

ROBERT P. WALSHATTORNEY

2 West Michigan AvenueSuite 301

Battle Creek, Michigan49017

Telephone (269) 962-9693Telecopier (269) 962-9592

E-Mail: [email protected]

March 17, 2014

U.S. Department of Veterans AffairsATTN: Director, Regulations Management (02REG)810 Vermont Avenue, N.W.Room 1068Washington, DC 20420

Telephone (202) 461-4902Telecopier (202) 273-9026http://www.regulations.gov

RE: NPRM RIN 2900-AO13

Gentlemen:

I have reviewed the November 27, 2013, Notice of Proposed Rule Making(NPRM) and feel that a few comments are warranted.

WILLFUL MISCONDUCT.

A disturbing trend in benefits claims adjudication at the U.S. Department ofVeterans Affairs (VA) has been noted in my office regarding willful misconductdeterminations.

Willful misconduct in the context of the adjudication of a claim for serviceconnected veterans disability benefits is almost always a determination reservedto the service department. I have observed benefits claims being wrongfullydenied when local Veterans Benefits Administration (VBA) staff have interposedtheir personal beliefs and biases in to the claims process.

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They have revisited final service department determinations that no willfulmisconduct was involved in an injury and declared that willful misconduct was abar to benefits.

One example is the sailor who was returning to his ship in San Diego,California. He had been drinking. He was assaulted by a gang of locals. Hesuffered a traumatic brain injury, dislocation of the right shoulder with permanentloss of function, and lacerations. The officer of the deck on his ship made anotation of willful misconduct when he reported aboard. The next day thatpreliminary determination was emphatically overruled by the sailors superiorofficer. That veteran was denied benefits for decades because regional officeemployees in Detroit, Michigan, chose to re-litigate that determination and raisewillful misconduct as a bar to benefits.

The regulations and manual M-21 should clearly indicate that a claimantbeing denied benefits by virtue of a willful misconduct determination is to beafforded due process. Full due process as required by the AdministrativeProcedures Act (APA) 5 U.S.C. 551-599; 701-706, and the Fifth Amendment tothe United States Constitution. See the discussion below regarding benefits fraud.

Letters informing a claimant that we propose to make a determination ofwillful misconduct regarding your claim or your claim has been denied as wehave made a finding of willful misconduct are contrary to law and devoid offundamental fairness.

Aliens that are the subject of deportation proceedings are afforded more dueprocess than our disabled veterans. Veterans who elect to file a claim fordisability benefits are not third-class citizens. They do not waive or surrendertheir right to due process by filing an application for benefits. When adetermination of willful misconduct is a factor in the adjudication of their claims,veterans and their dependents are entitled to due process of law. They must beafforded adequate notice, an opportunity to review the record and evidence whichforms the basis for the willful misconduct determination, and a hearing on therecord. The proposed regulations are inadequate and must be revised.

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The regulations and instructions in M-21 should set forth clear guidance onthe due process to be afforded a claimant when a finding of willful misconduct isproposed. A service member receives the due process afforded by the UniformCode of Military Justice (UCMJ) and the relevant service department regulations. The determinations now being made by regional office staff are made in camera. No proper notice is afforded to the veteran. No opportunity to review the relevantevidence, the specific proposed finding, or an explanation of the potentialconsequences of the determination are provided by VBA staff.

A brief annotation in a rating decision or statement of the case that benefitshave been denied based on a finding of willful misconduct is a denial of the dueprocess mandated by the APA.

BENEFITS FRAUD ADJUDICATIONS BY THE U.S. DEPARTMENT OFVETERANS AFFAIRS.

The process for investigating and adjudicating allegations of benefits frauddetailed in the NPRM are expedient. They are illegal and unconstitutional, butexpedient.

In a report concerning workers compensation fraud, the VA OIG has statedthat:

Federal statutes prohibit employing agencies from conductingcriminal fraud investigations, limiting agencies solely to the reviewof the extent of medical impairment of the claimant. Criminal fraudinvestigations may be conducted only by authorized law enforcementagencies.

Signed by Michael L. Staley, Assistant Inspector General for Auditing, U.S.Department of Veterans Affairs, August 13, 2004.

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The Veterans Benefits Administration has a very limited role to play in theadjudication of an allegation of benefits fraud. The VA Office of InspectorGeneral (VA OIG) is tasked with collecting and investigating fraud allegations. The VA OIG may only act within the constraints of the Inspector General Act of1978, 5 U. S.C. Appendix. The VA OIG is not a law enforcement entity.

Benefits fraud allegations received and reviewed by the VA OIG must beforwarded to the VA Office of General Counsel (VA OGC) for further review andaction if required. If a fraud allegation is adjudicated and found to be true, anoverpayment amount is calculated and the fraud determination is sent to theVeterans Benefits Administration for implementation. This role of the generalcounsel is set forth in 38 C.F.R. 14.561, and in greater detail in 38 C.F.R. 42.1-42.47. The proposed regulations continue to ignore the Congressionalmandate for the adjudication of benefits fraud. They attempt to perpetuate theillegal and unconstitutional ad hoc procedures which appear to have been used bythe U.S. Department of Veterans Affairs to deal with allegations of benefits fraudon an ex parte basis for decades.

Since at least the 1930's the United States Congress has enacted legislationwhich mandates the procedures to be followed by all agencies when adjudicatingallegations of benefits fraud. Title 31 of the United States Code also includesstatutory provisions for the calculation, reporting, and collecting of a debt owed tothe U.S. Government arising from benefits fraud.1

1 See generally: 31 U.S.C. 3711, the Debt Collection Improvement Act of1996; 31 U.S.C. 3729-3733, False Claims Act (1863)(October 27, 1986); 31U.S.C. 3801-3812, Program Fraud Civil Remedies Act; 5 C.F.R. 185,Program Fraud Civil Remedies; 28 C.F.R. 11.4-110.9, Administration of DebtCollection; 28 C.F.R. 11.10, IRS Tax Refund Offset Provisions for Collection ofDebts; 28 C.F.R. 71, Implementation of the Provisions of the Program FraudCivil Remedies Act of 1986; 31 C.F.R. 16, Regulations Implementing theProgram Fraud Civil Remedies Act of 1986; 31 C.F.R. 285.5, Centralized Offsetof Federal Payments to Collect Non Tax Debts Owed to the United States (TOPS);and, 31 C.F.R. 900-904, Federal Claims Collection Standards.

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The importance of compliance with these statutes and regulations is two-fold. First, the laws were put in place to provide uniformity and afford dueprocess of law to the beneficiaries of federal programs accused of fraud. Second,the comprehensive statutory and regulatory scheme affords the accused dueprocess of law in compliance with the mandates of the United States Constitution, Fifth Amendment. This body of law sets forth the exclusive procedures for theadjudication and recovery of debt from benefits fraud and the process for referringsuch a case to the U.S. Department of Justice for criminal or civil prosecution.

In 1986 the then Veterans Administration added the benefits fraudregulations at 38 C.F.R. 42.1-42.47. The VA regulations were amended later toreflect the creation of the U.S. Department of Veterans Affairs.

A response to a Freedom of Information Act inquiry to the VA covering afour year period indicated that these regulations had not been used. No Administrative Law Judge (ALJ) had ever been appointed to adjudicate a benefitsfraud case under the VA regulations during that four year period. During the sameperiod of time the VA OIG had issued numerous press releases to announcefederal criminal convictions of veterans and family members for benefits fraud.

I find it very remarkable that this NPRM does not mention theCongressionally mandated due process procedures for the adjudication of benefitsfraud allegations set forth in 38 C.F.R. 42.1-42.47 even once. The VApromulgated the regulations in 1986. It appears that the VA has never affordedany veteran accused of benefits fraud the due process mandated by Congress andfound in these regulations. During the same period of time hundreds (if notthousands) of veterans and family members have been accused of benefits fraud bythe agency. Many of these veterans have had those benefits fraud allegationsforwarded to the U.S. Department of Justice for criminal prosecution prior to thecompletion of the administrative adjudication of the allegation. By that I meaneven the current ad hoc VBA procedures. Not only are the proper proceduresignored, VA OIG circumvents the established U.S. Department of Justice (DOJ)procedures for referral of a benefits fraud case for criminal prosecution.

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Low level employees of the VA Office of Inspector General circumvent theVA General Counsel and enter in to direct discussions with United StatesAttorneys around the country to obtain indictments. In one case VA OIGinvestigators convinced a county prosecutor to have a military retiree arrested andcharged in an Indiana state court. The allegation was travel pay fraud relating totreatment at the VA medical center in Indianapolis. Not federal court, state court.

The current ad hoc process for benefits fraud adjudications being used at theVBA is set forth in the NPRM. It is unlawful. It ignores the Congressionallymandated due process found in 38 C.F.R. 42.1-42.47. It is contrary to the dueprocess mandates of the Administrative Procedures Act. 2 As discussed below,there are two major flaws in the Frankenstein Monster procedures used by theVA.

First, they result in incomplete and legally infirm adjudications of thebenefits fraud allegation.

Second, they circumvent the Congressionally mandated procedures for theperfecting and collecting of a benefits fraud debt by a federal agency. This isdemonstrated by a review of Board of Veterans Appeal (BVA) and U.S. Court ofAppeals for Veterans Claims (CAVC) decisions concerning overpayments. Whenthese cases are appealed the veteran is often successful in having the debt thrownout. By that time the statute of limitations has often run. The taxpayers suffer theloss (if indeed the debt was ever actually owed to the agency).

2 For a comprehensive review of proper benefits fraud investigation andadjudication see United States Attorneys Bulletin, Vol. 52, No. 6,November 2004, Social Security Fraud, attached.

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FRAUD, A DISFAVORED TORT, IS QUASI CRIMINAL IN NATURE.

The NPRM reports that a previous public comment had indicated that fraudis quasi criminal in nature. The author of the NPRM brushed that comment aside.

Fraud is a disfavored tort. Actionable fraud is defined as deceptionpracticed in order to induce another to part with property . . . . A falserepresentation made with an intention to deceive. . . Blacks Law Dictionary , 6thEd., West, 1990.

Fraud must be plead with specificity, as a special matter. Federal Rule ofCivil Procedure 9 (b) provides that:

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud ormistake, a party must state with particularity the circumstancesconstituting fraud or mistake. Malice, intent, knowledge, andother conditions of a person's mind may be alleged generally.

The VA OIG has been referring cases directly to U.S. Attorneys for criminalprosecution using a theory of wire fraud based on the government wide effort tohave all recipients of benefits receive their payments via direct deposit. See 18 U. S.C. 1343.

The NPRM refers to Roberts v. Shinseki, 23 Vet. App. 416 (2010) severaltimes. In the interest of clarity some discussion of that case is in order. Contraryto the Congressional intent, Mr. Roberts was forced to defend himself in twoforums simultaneously. He was appealing the termination of his service connecteddisability benefits and vague benefits fraud allegation at the VA regional office,Board of Veterans Appeals, and at the U.S. Court of Appeals for VeteransClaims. Even though the initial stage of the adjudication of the benefits fraud andcompensation termination action had not been fully adjudicated, he had alreadybeen indicted for the same conduct by the U.S. Attorney for the Eastern District ofWisconsin. Mr. Roberts was defending himself in Federal District Court for theEastern District of Wisconsin and later appealing to the U.S. Court of Appeals forthe Seventh Circuit, and the Supreme Court of the United States at the same time

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his administrative case was active at VA. Mr. Roberts was convicted of wire fraudand served over four years in a federal penitentiary. He has been released. Someof his original benefits issues are still being adjudicated by the Veterans BenefitsAdministration almost ten years later.

There has never been a final agency decision as to the reduction of his VAbenefits payments. The Secretary of Veterans Affairs never properly adjudicatedthe benefits fraud allegation and termination of benefits. The Secretary ofVeterans Affairs has never certified damages from benefits fraud in a sum certainto the Department of Justice in the Roberts case as required by law.

There was never an administrative determination as to the specific amountof VA benefits compensation (if any) Mr. Roberts was entitled to during theperiod covered by the federal criminal indictment. Only ad hoc estimates wereever made, and not by those authorized by statute to make such determinations.

Should he prevail in the portion of his case remanded by the CAVC in 2010his service connected compensation benefits may be restored at the 100% rate ofpay. At that point he will have served four years in a federal penitentiary forhaving accepted payment for benefits to which he was lawfully entitled. Nomonetary loss to the VA will exist. But Mr. Roberts will still be charged with adebt of over $ 250,000.00. And now he is being charged twice, once by the DOJand yet again for the same debt (but in a much different amount) by the VA DebtManagement Center.

See Roberts v. Shinseki, 643 F.3d 1334 (Fed. Cir. 2011) (Cert. Den.);Roberts v. the United States of America, No. 08-788 Cert. Den. (U.S. Dec. 15,2008); United States v. Roberts, U.S. District Court, Eastern District ofWisconsin, docket 05-CR-115; United States v. Roberts, 534 F.3d 560 (7th Cir.July 7 2008) (Cert. Denied 08-788, December 15, 2008).

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As demonstrated by the dates on the citations above, the CAVC did notrender a decision until 2010 for a case filed in May of 2005. The criminal appealswere exhausted in December of 2008. Documents obtained in criminal discoveryindicate that VBA executives were directly involved in the effort of the VA OIGto have Mr. Roberts indicted at the same time they were communicating with himregarding his pending benefits claims.

The only investigation ever conducted in the criminal case was theadministrative investigation done by the Chicago office of the VA OIG. Mr.Roberts was represented by the American Legion at his BVA hearing. He hadalready been indicted. He had to obtain leave from the federal district court toattend his BVA hearing in Washington. At that BVA hearing he was notpermitted access to his VA claims file. The original file had been seized by theVA OIG and the Board was using an incomplete photocopy.3 Mr. Roberts hadobtained the VA OIG report on his alleged fraud during criminal discovery. TheVBA and Board never provided him a copy of the VA OIG report which formedthe factual and legal basis for the termination of his compensation benefits andwas a central issue in that appeal.

The DOJ manual indicates that for wire fraud an investigation must beconducted by either the Federal Bureau of Investigation or the U.S. TreasuryDepartment. To my knowledge the VA OIG investigator conducted the onlyinvestigation in the Roberts case. A VA OIG employee later provided the onlytestimony to the federal grand jury. He made material misrepresentations to thegrand jury when he testified that the adjudication of the benefits case wascompleted. It is still pending at the time this is being written.

3 During criminal discovery and later when reviewing the record providedto the CAVC by VA OGC, Mr. Roberts and his attorneys would find hundreds ofpages of evidence missing from the VA record. The record at the CAVC wassupplemented twice by counsel for Mr. Roberts. Other critical documents wereidentified later and submitted to the Board during this remand period.

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The VA never actually adjudicated the allegation of fraud made against Mr.Roberts. In the proposal to sever his benefits the regional office staff indicatedthat his benefits were being severed.

To my knowledge there was no involvement by the VA OGC in this caseuntil it was docketed at the CAVC in May of 2005. On several occasions duringthe CAVC appeal counsel for the Secretary asserted that the VA Office of GeneralCounsel had no role to play in the adjudication of benefits fraud allegations.

Mr. Roberts and the undersigned assert that a plain reading of the relevantlaw indicates otherwise.

Had the procedures set forth in 38 C.F.R. 42.1-42.47 been compliedwith Mr. Roberts would have been provided proper and detailed written notice ofthe allegations against him. He would have been given notice of his right tocounsel. He would have been afforded an opportunity to be heard by anAdministrative Law Judge as defined in the APA.4 A neutral fact finder, not anagency employee such as a BVA veterans law judge.

An investigation of an allegation of benefits fraud is inherently adversarial.Such an investigation carries with it, as a minimum, the potential for a loss ofbenefits, a property interest. It also carries with it the potential for the loss ofliberty such as that suffered by Mr. Roberts. See Mathews v. Eldridge, 424 U.S.319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254(1970).5

4 Arzt, Robin J., What Veterans Would Gain From Administrative ProcedureAct Adjudications, Tommy, Issue 2, 2002, Federal Bar Association, copy attached.

5 The Veterans Benefits Administration has a cumulative error rate ofapproximately 90% for the adjudication of benefits claims. Do the authors of thisNotice of Proposed Rule Making actually suggest that these same employeesshould be entrusted to make benefits fraud determinations which entail thepotential for such draconian monetary, civil, and criminal penalties?

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See also 38 C.F.R. 3.103(a) (2012) (Proceedings before VA are ex partein nature, and it is the obligation of VA to assist a claimant in developing the factspertinent to the claim and to render a decision which grants every benefit that canbe supported in law while protecting the interests of the Government.); 38 C.F.R. 19.29(b) (2012) (requiring the agency to provide veterans with [a] summary ofthe applicable law and regulations.); Manio v. Derwinski, 1 Vet. App. 140, 144(1991) (Rather than defending against the claims of veterans, the Secretary has astatutory duty to assist claimants during the course of the ex parte andnon-adversarial claims resolution process at the regional office and before theBVA.). See also Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994);Cushman v. Shinseki, 576 F.3d 1290 (Fed . Cir. 2009).

A VBA employee communicating directly with a U.S. Attorney in an effortto procure obtain a criminal indictment of a veteran for benefits fraud whileactively adjudicating the same veterans benefits claims would appear to beadversarial by any reasonable definition.

On August 26, 2005, the BVA, B. Bohan, Veterans Law Judge, issued adecision under Docket Number 03-04 265 which, inter alia, upheld the terminationof disability compensation benefits of Mr. Roberts by the Agency of OriginalJurisdiction, the VARO Milwaukee, Wisconsin. The Board made: A finding offraud in the May 1998 grant of service connection for post traumatic stressdisorder (PTSD) and dysthymia and depression under the authority of 38 U.S.C.501; A finding of Clear and Unmistakable Error (CUE) in the same decision; and,that the criteria for severance of the award of PTSD had been met under color of,inter alia, 38 U.S.C. 501; and 38 C.F.R. 3.105 (d) and 3.957. The Boarddetermined that Mr. Roberts was not on duty in Naples, Italy, on February 4, 1969,and that he had no stressor for PTSD.6

6 When called to testify in Federal District Court during the criminal trialnone of the government witnesses testified that Mr. Roberts was not present inNaples Italy on February 4, 1969, the date of a fatal accident. They testified thatthey did not recall or that they did not know Roberts. These were many of thesame individuals quoted in the VA OIG Mr. Roberts was not allowed to review orchallenge during his VA adjudication.

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In the BVA decision dated September 28, 2012, Docket Number 03-04 265,the Board remand quoted the decision in Roberts v. Shinseki, 05-2425, 23 Vet.App. 416 (2010); Affirmed, Roberts v. Shinseki, 643 F.3d 1334 (Fed. Cir. 2011)Cert. Den.:

Upon consideration of the foregoing, that part of the August 26, 2005,Board decision denying Mr. Robert's claim for disability compensationfor dysthymia and depression on a direct basis is SET ASIDE and thematters are REMANDED for further adjudication. The remainder ofthe decision is AFFIRMED. See 38 U.S.C. 7252(a). [As found inPart IV. Conclusion section of the April 2010 Decision of the Courtof Appeals for Veterans Claims]. The Board continued:Accordingly, remand is warranted for the Board to addressservice connection on a direct basis for dysthymia and depression. . .Clearly, the Court directed the Board to adjudicate the claim forservice connection on a direct-incurrence basis. The Board notes thismatter is inextricably intertwined with the claim for separatecompensable evaluations for dysthymia and depression. The Court hasheld that a claim which is inextricably intertwined with another claimwhich remains undecided and pending before VA must be adjudicatedprior to a final order on the pending claim.

[September 2012 Remand Order from the Board of Veterans Appeals].

Mr. Roberts obtained the VA OIG report that accused him of benefits fraudin criminal discovery. The BVA rendered the decision which was affirmed in partand remanded in part by the CAVC based on the decision based primarily on thatVA OIG report.

Whether Mr. Roberts was at his duty station during a time of emergency in1969 would appear to be one of those determinations properly reserved for theservice department. Mr. Roberts was not punished for his actions on February 4,1969. In fact, the service record contains a favorable performance review datedonly a few days later.

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The U.S. Supreme Court has long held that due process requires access tothe record, and an opportunity to be heard in a neutral setting. See Gonzales v.United States, 348 U.S. 407 (1955) (conscientious objector contesting hisclassification before appeals board must be furnished copy of recommendationsubmitted by Department of Justice; only by being appraised of the arguments andconclusions upon which recommendations were based would he be enabled topresent his case effectively). Also United States v. Nugent, 346 U.S. 1 (1953) (inauxiliary hearing which culminated in Justice Departments report andrecommendation, it is sufficient that registrant be provided with resume of adverseevidence in FBI report because the imperative needs of mobilization and nationalvigilance mandate a minimum of litigious interruption). Even this truncatedopportunity goes far beyond what a veteran accused of benefits fraud is permittedby the VA.

Mr. Roberts would welcome the opportunity to defend himself before anAdministrative Law Judge, not an agency employee. Because the mandatoryprocedures were not followed he now finds himself in the bizarre circumstancedescribed above. The U.S. Attorney is collecting on the debt created by thecriminal case. Now the VA has created a second debt. Neither debt was everadjudicated or certified by the Secretary. The two debts are for different amounts. And both are attempting to collect the alleged monies improperly paid to Mr.Roberts based on his unadjudicated benefits fraud. At the same time health careproviders are attempting to collect because CHAMPVA payments to his familywere illegally clawed back by VA creating a large debt arising from once paid, butnow unpaid, medical bills.

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RE: NPRM RIN 2900-AO13 CONCLUSION

The Notice of Proposed Rule Making should be rescinded and the relevantsections rewritten to comply with the federal law of benefits fraud and the FifthAmendment to the United States Constitution. This group of regulations should bere-written to incorporate the Congressionally mandated due process, debtdetermination and debt collection standards found in Title 31 of the United StatesCode and the APA.

A bright line should be established which clearly indicates that the VAOffice of General Counsel is the sole point of contact between the agency and theDepartment of Justice for the referral of cases for criminal investigation andpossible prosecution.

Mr. Justice Jackson in his dissent in Federal Crop Insurance Corp. v.Merrill et al, 332 U.S. 380; 68 S. Ct. 1 (1947), could have been writing of thiscase when he observed: It is very well to say that those who deal with the Government should turn squarecorners. But there is no reason why the square corners should constitute a oneway street.

Respectfully submitted,

/S/ ROBERT P. WALSH Date: 03/17/2014 ROBERT P. WALSH, Esq.2 Michigan Avenue WestSuite 301Battle Creek, Michigan 49017

Telephone (269) 962-9693Telecopier (269) 962-9693E-mail: [email protected]

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RE: NPRM RIN 2900-AO13 Enclosures:

1. Arzt, Robin J., What Veterans Would Gain From Administrative ProcedureAct Adjudications, Tommy, Issue 2, 2002, Federal Bar Association.

2. United States Attorney Bulletin, Social Security Fraud, November 2004.

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.17 Federal Bar Association Veterans Law Section

A Lawyer's Guide to Veterans Affairs What Veterans Would Gain From Administrative Procedure Act Adjudications By Robin J. Arzt

Inside This Issue 5 CVA to Convene"

Seventh Judicial Conference'

The-:',COUrt ,Rtle. si

8 Beware the Voluntary Dismissal, You Mav Get What You Ask For

Law-atVeterans FBA.Convention

published in Tonitny donot necessarily

the FederarBin'Ass6eLition. the VeteraNS Law Section, 01 any app:, fvf:firin. with . which 'are associated.

,Federal Bar Association

Veteeans Law Section

There is a crisis of public confidence in the timeliness, fairness, and quality of the VA disability claims process. Our veterans who apply for VA disability benefits are con-fronted with an inefficient, inaccurate process that undermines administrative fairness and the pub-lic's confidence in that fairness.

1. Untimely decisions. There are lengthy case processing times for initial claims at the Depart-ment of Veterans Affairs (VA) regional office level and for appeals to the Board of Veterans' Appeals (BVA) and U.S. Court of Appeals for Veterans Claims (Veterans Court) that add up to years. Undecided backlogged initial claims num-ber in the hundreds of thousands and had climbed to 600,000 by the end of 2001. The BVA and Vet-erans Court also have significant backlogs and increasing case processing times in recent years. There is no limit to the number of appeals. Numerous veterans reportedly die every year while awaiting determinations of their VA disabil-ity claims at all levels.

2. Perception of unfairness. The BVA achieved the uniquely low score of 35 in the December 2001 American Customer Satisfaction Index compiled annually regarding federal agencies by the University of Michigan Business School and American Society for Quality.1 The study's direc-tor opined that he never before saw anything like this low score. However, the chairman of the BVA explained it away by saying that a 35 is not bad when only 22 percent of veterans received an increase in benefits at the BVA level,2

which shows an insensitivity to the public perception of unfairness that this remarkably low satisfaction

score appears to signify. In 2000, the BVA favor-ably ruled on 26 percent of the benefits claims. Veterans are virtually barred from hiring lawyers to help prosecute their claims through the VA administrative process until their case reaches the Veterans Court, which leaves some veterans feel-ing that they are being denied counsel of their choice. The lack of legal counsel during the administrative process has been estimated to add substantially to the case processing time.

3. Poor decision quality. The quality of the regional office determinations and BVA decisions as measured by their accuracy is poor. Despite years of VA effort to improve claims processing accuracy and timeliness, VA reported a 41 percent error rate at the regional office level in fiscal year 2000, according to a June 2000 GAO report.3 In 2000, the BVA vacated 30 percent of the regional office determinations and remanded the cases for another determination. In the same year, the Vet-erans Court vacated a huge 64 percent of the BVA decisions on appeal, most upon procedural grounds, and remanded the cases for further pro-ceedings.4

This year, VA increased the monthly regional office disposition rate from 29,000 to 70,000, which reduced the backlog from 600,000 to 389,000 by June 3, but apparently at the cost of a further erosion in the quality of decisions. On June 6, an American Legion official testified before the House Veterans' Affairs Subcommittee that a quality review team that reviewed one regional office found evidence of premature and erroneous denials of claims after cursory review in order to meet stringent VA production quotas, a general lack of compliance with the Veterans'

continued on page 2

TOMMY Lawvy's Guide

Fedefal Bar Aociation N'Uter:tris Section

Staff Editor:NV][16m Mailundcr,'Eq Copy Editor; Pat Scully

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Chairperson Dan Kraqiegor. Est]

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(800) 424-8200 Spectil thank's to the Paralyzer) Veterans I America for supporting the produL.tion ()Ibis new letter.

2 TOMMYFederal Bar Association Veterans Law Section

Adjudicationscontinued from page 1

Claims Assistance Act of 2000, and what may be "an orchestrated policy of manipu-lation of...production figures as a means of meeting...mandated production quo-tas...."5

The current public uproar that has spilled into the media about the perceived lack of fairness, poor decision quality, untimeliness, lack of independence, and weak due process in the VA disability claim process at the BVA appellate level exists precisely because of the lack of the procedural safeguards that now exist for Social Security claimants in the Adminis-trative Procedure Act (APA).

The APA was enacted in 1946 to achieve reasonable uniformity and fair-ness of the administrative process in the federal government for members of the American public with claims pending before federal agencies. The APA pro-vides the minimum standards for federal administrative due process in the Execu-tive Branch and delineates procedures for adjudicative administrative proceedings, namely individual case decisions about rights or liabilities as an agency's judicial function. This includes uniform standards for the conduct of adjudicatory proceed-ings, including the merit appointment of hearing examiners, who now are adminis-trative law judges (ALJs). The APA sets forth a due process administrative proce-dure for the hearing and decision by ALJs of cases brought before the federal agen-cies to which the APA applies.6

VA's use of subordinated employees at its final level of administrative review, the BVA, together with the BVA's low favor-able ruling rate and high remand rate, unsurprisingly has fostered the public per-ception that the BVA is an instrument and mouthpiece for VA. Our veterans deserve full administrative due process before an independent decisionmaker for their dis-ability claims. There now is a movement to apply the APA due process require-ments to the BVA to address problems of quality, untimeliness, and the perception of unfairness. Using an APA process with ALJs modeled on the SSA system at the BVA level recently has been endorsed by respected academicians.? A former BVA

chair also has cited the SSA APA process as a mode1.8

By APA mandate, the AU is an indef pendent, impartial adjudicator in the administrative process, and there is a sepa-ration of an agency's adjudicative function from its policy-making, policy-implemen-tation, rulemaking, investigation, and prosecutorial functions. The remainder of this article describes the benefits that these features of the APA would afford the vet-erans who file VA disability claims.

The ALJ is the only impartial, indepen-dent adjudicator available to a claimant in the federal administrative process and the only person who stands between the claimant and the whim of agency bias and policy. The APA puts many protections in place to ensure that ALJs are independent, competent, and impartial in adjudicating administrative claims. The decisional independence granted to ALJs is designed to maintain public confidence in the essential fairness and high quality of the process through which benefits are allo-cated by ensuring impartial decisionmak-ing. APA creates a comprehensive procedural bulwark to protect ALJs frorri agency interference. The high profes-sional quality of ALJs and their decisional independence are ensured through the fol-lowing APA safeguards.

1. ALJs are appointed as a result of a competitive merit selection process administered by the Office of Personnel Management (OPM), rather than by the hiring agencies. Securing fair and compe-tent hearing personnel through a non-political appointment process is the heart of the formal administrative adjudication process. The BVA chairman is appointed by the president with the Senate's advice and consent.9 The other BVA members are appointed by the VA secretary on the BVA chairman's recommendation and presiden-t's approval.10 The BVA members thus are not appointed through competitive merit selection process. However, in the event that the BVA hearing process were made subject to the APA, the sitting BVA mem-bers should be permitted an equitable opportunity to qualify as APA ALJs.

2. ALJs have career permanent civil service appointments without a probation-ary period to prevent agency dismissal of

Issue #2 -2002 3

ALJs whose decisions are not favored by the agency.

3. All pay levels are set by statute and ALJ pay is regulated by OPM independent of agency recommendations or ratings.

4. Agencies are prohibited from giving performance evaluations of ALJs, or giv-ing bonus pay and honorary awards to ALJs in the performance of adjudicatory functions. Before the APA, hearing offi-cers were impeded in their exercise of independent judgment because they often were subordinate to executive officials within the agency. By statute, the BVA chairman controls and supervises the BVA, is accountable to the VA secretary, and is authorized to appoint a perfor-mance review panel to review BVA mem-bers' work.11 The BVA members thus are subordinate VA employees and have per-formance reviews by VA agency superiors on a regular basis that may result in their removal as BVA members for unaccept-able job performance.12

5. An All is not responsible to, or sub-ject to the supervision or direction of, employees or agents engaged in the per-formance of policy-making, policy-imple-mentation, investigative, or prosecution functions for the agency when conducting a hearing or deciding a case. Thus, the public's perception of fairness in the BVA process will be enhanced by due process hearings and decisions by APA ALJs.

6. Procedural safeguards to prevent ex parte communications about the merits of a claim with the ALJ, agency and employ-ees involved in the decisionmaking process. An ALJ may not consult any per-son or party, including other agency offi-cials, concerning a fact at issue in a claimant's hearing, unless on notice and opportunity for all parties to participate. The prohibition of off-the-record or ex parte communications is a lynchpin of the integrity of an ALJ's decisional indepen-dence. Concerns have been expressed about VA's "quality review" for errors (as per the BVA Handbook) of all BVA deci-sions or remand orders that are drafted after a court remand but before they are issued by the BVA. The pre-decision review is performed by the Litigation Support Division that is located within the BVA under the BVA chairman. The Liti-gation Support Division refers files with

"erroneous" draft BVA decisions or remand orders to the BVA's senior deputy vice chairman. Differences of opinion between a BVA member and the BVA's senior deputy vice chairman are finally determined by the latter. Concerns also have been expressed about the Litigation Support Division review of, and issuance of memoranda that comment upon, Veter-ans Court remand orders before they are issued, since the court remand orders gov-ern BVA decisions and the BVA members apparently may also see the memo-randa.13 Ex parte and off-the-record review of and comment upon the Veterans Court remand orders and BVA decisions and remand orders before they are issued by a non-adjudicator part of the BVA undermine BVA member decisional inde-pendence and public confidence in the fairness of VA adjudication.

7. ALJs are insulated from at will removal by the president and employing agency by the requirement that a due process hearing be held before the Merit Systems Protection Board before an adverse personnel action may be taken against an ALJ. This provision helps pro-tect APA adjudications from political intrusion. BVA members' fixed terms were ended by statute in 1994. A removal action against a BVA member for a reason other than job performance is subject to the same procedural requirements that are afforded ALJs pursuant to 5 U.S.C. 7521 of the APA. The BVA member also has the procedural rights to notice of the reasons for removal, reasonable answer time, rep-resentation, and a timely written decision that are set forth in 5 U.S.C. 7513(b). 5 U.S.C. 554(a)(2) does not apply to a removal action for a reason other than job performance.14

8. The requirement that cases be rotated among all of the ALJs employed by an agency prevents an agency from "judge shopping" for a particular outcome or giving fewer cases to ALJs whose deci-sions the agency does not like. By regula-tion, the BVA chairman is empowered to assign cases to the BVA members and dis-qualify a BVA member from hearing and deciding a given case.15

9. The requirement that All functions may not be delegated to, or performed by, non-All employees prevents an agency

from avoiding giving cases to ALJs whose decisions the agency does not like. The BVA chairman is permitted to appoint VA employees as acting BVA members for a maximum of 90 days at a time, but such an individual may serve up to 270 days per year. Acting BVA members cannot be more than 20% of the total number of BVA members and acting BVA members.16

10. ALJs are placed in a separate part of an agency from the initial decisionmak-ers and policy-makers to provide adminis-trative review that is free of actual or perceived bias. There is no separation of the BVA from the VA policy-making structure.

11. ALJs may not perform duties inconsistent with their duties as ALJs. Prior to the APA, there was considerable concern that those hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work.

The APA's procedural separation of an agency's adjudicative function from the policy-making, policy-implementation, rulemaking, investigation, and prosecuto-rial functions of an agency would provide many benefits for veterans who appeal to the BVA.

1. A full and fair hearing that is con-ducted by an ALJ appointed pursuant to the APA, free of political and policy implementation pressure by the agency.

2. A de novo hearing that is on the record. The BVA does de novo hearings on the record that are nonadversarial. For-mal rules of evidence are not followed. However, unlike the SSA de novo ALJ hearing, a veteran must move for permis-sion to submit evidence that was not con-sidered by the regional office and show good cause for not filing the evidence at the earlier step. Good cause is limited to several specific reasons by regulation. Also, a veteran must waive his right to have the new evidence considered by the regional office in order to avoid a remand of the case and stay before the BVA.17

3. A right to representation by a lawyer or nonlawyer at the hearing and during the rest of the application and appeals pro-

continued on page 4

4

TOMMYFederal Bar Association Veterans Law Section

Adjudicationscontinued from page 3

cess. A veteran essentially is barred by statute from hiring a lawyer at the initial regional office claims level and the BVA level because the lawyer is not permitted to be paid for his services, unless the BVA already has issued a final decision in issues raised in the case and the lawyer was retained within one year of the final decision issue date.18 Thus, while BVA rules permit a veteran to be represented by an attorney, only three to five percent of veterans are so represented. Instead, in practice, most veterans who apply for VA disability benefits are limited to using nonattorney representatives from veterans service organizations chartered by Con-gress and state veterans organizations that represent the veterans.19 By contrast, the SSA disability process permits a claiman-t's attorney and nonattorney representa-tive to either submit a fee petition without a statutory maximum amount for A LJ approval or to enter into a contingent fee agreement with his or her client to accept the lesser of $4,000 or 25 percent of the past due benefits in the event that the client is awarded benefits, which has resulted in a high participation by lawyers in SSA disability claims. Permitting attor-ney representation is not a denigration of the veterans groups that now represent the veterans in the bulk of the cases at the ini-tial and BVA levels, but affords veterans the full range of representation of their choice and the option of having a repre-sentative who is not a lay person in build-ing a record and dealing with the increasingly complex VA claims proce-dures.

4. A decision based upon an eviden-tiary record introduced before, at, and after the hearing. ALJs can subpoena records and would be empowered by the APA to require VA to develop the record before and after the hearing for the benefit of the claimants.

5. A written decision that states the facts and law relied upon, rulings on exceptions, the ALJ's rationale, and the ALJ's findings of fact, rulings on the law, and decision. A BVA decision is a written statement of the findings and conclusions on all material issues of fact and law, the

reasons for the findings and conclusions, and an order granting or denying relief.20

6. Decisions in accordance with the applicable federal statutes, regulations, and case law. Subordinate employees who are without the decisional independence safeguards of ALJs will not be able to resist an agency's policy that may conflict with federal law without risking an insub-ordination charge. By statute, the BVA is bound by the regulations and instructions of the VA secretary and the "precedent opinions of the chief legal officer of the Department...," which is the VA general counse1.21 The Litigation Support Divi-sion reportedly seeks out issues that it identifies as needing a consistent VA position and asks the BVA chairman to request a precedential general counsel opinion that will bind the BVA members. The BVA chairman reportedly often asks for and obtains such precedential opin-ions from the general counsel. This statute and provision reduce BVA deci-sional independence to follow federal law.

7. Mandatory judicial review of the final administrative decisions by the agency.

Given that the veterans disability claims process is one of the largest administrative adjudication systems in the United States, with hundreds of thousands of cases decided per year, VA is the face of the United States government to the veterans who seek benefits. How veterans view that face depends upon the quality of due process they receive, particularly when they seek a review of an unfavor-able initial decision by VA. The use of an APA due process procedure with APA ALJs at the BVA appeals level will pro-vide our nation's veterans high quality appellate due process and a sense of fair play.

Robin .1. Arzt is an administrative law judge with the Social Security Administration (SSA), Bronx Office of Hearings and Appeals. She holds a BA 1975, JD 1978, and MBA 1985, from New York University. The author's position with the SSA is stated for identification purposes only. This arti-cle was written in her private capacity. No offi-cial support or endorsement by the SSA is in existence or should be inferred. The views

expressed in this article are those of the author and do not necessarily represent the views of the SSA or the United States.

1 Patrick Barta, Customer Satisfaction Index Sug-gests More Patience with U.S. Government, Wall Street Journal (Dec. 17, 2001). 2 Del Jones, More Consumers Give Government Services Thumbs-Up, USA Today (Dec. 17, 2001). 3 "Veterans' Benefits: Training for Claims Processors Needs Evaluation," (GAO-01-601). 4 See, Joan Mazzolini, Veterans Discover Entirely New Battle to Obtain Benefits, The Plain Dealer (Cleveland) (May 13, 2001). See gener-ally, Fox, The United States Board of Veterans' Appeals: The Unfinished Struggle to Reconcile Speed and Justice During Intra-Agency Review, Paralyzed Veterans of America, 25-32 (2000). 5 Veterans' Affairs Department Cleans Up Bene-fits Claims Backlog, Federal Employees News Digest, www.fedonline.com (May 31, 2002); Tanya Ballard, VA Benefits Production Quotas Called into Question, Government Executive Magazine, www.govexec.com (6/7/02). 6 The APA is codified at 5 U.S.C. 551-559, 701-706, 1305, 3105, 3344, 4301(2)(E), 5335(a)(B), 5372, and 7521. 7 William F. Fox, Jr., in Issue 3 (2001) of this newsletter; James T. O'Reilly, Burying Caesar: Replacement of the Veterans Appeals Process Is Needed to Provide Fairness to Claimants, 53 Admin. L. Rev. 223, 225, 243-247 (2001). 8 O'Reilly, supra at 243, citing, Charles L. Cra-gin, The Impact of the Judicial Review on the Department of Veterans Affairs Claims Adjudi-cation Process: The Changing Role of the Board of Veterans' Appeals, 46 Me. L. Rev. 23, 40 (1994). 9 38 U.S.C. 7101. 10 38 U.S.C. 7101A(a). 11 38 U.S.C. 7101A(c)-(g). 12 38 U.S.C. 7101A(c)-(e). 13 Fifth Judicial Conference, BVA's Role in Cases before the Court, moderated by Jeffrey N. Luthi, 12 Vet. App. 75, 76-84 (September 1998). 14 38 U.S.C. 7101A(e)(2). 15 38 C.F.R. 19.3, 19.10(c). 16 38 U.S.C. 7101(c)(1). 17 38 C.F.R. 20.1304(b)-(c). 18 38 U.S.C. 5904(c). 19 Fox, at 37-42. 20 38 U.S.C. 7104(d). 21 38 U.S.C. 7104(c).

END OF EXHIBIT

Social Security Fraud

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Prosecuting Title II Cases: Protecting The Social Security Trust Fundsfrom Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

By John K. WebbOverview of the Felony Fraud Provisions of the Social Security Act . . . . 15

By Jonathan MorseProsecuting Supplemental Security Income (SSI) Fraud: Punishing Abusersof the Nation's Federal Welfare Program . . . . . . . . . . . . . . . . . . . . . . . . . . 20

By John K. WebbProsecuting Social Security Recipients for False Endorsement of TreasuryChecks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

By Judith RingleProsecuting Representative Payee Fraud: Protecting the Needy fromPredators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

By John K. Webb

November2004

Volume 52Number 6

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In This Issue

NOVEMBER 2004 UNITED STATES ATTORNEYS' BUL LET IN 1

IntroductionThe Social Security Administration (SSA)

gained its independence from the Department ofHealth and Human Services (DHHS) in 1995 andis headed by an Inspector General (IG), whoserves at the pleasure of the President. Themission of SSA, Office of the Inspector General(OIG), is to improve SSA programs andoperations and protect them from fraud, waste,and abuse by conducting independent andobjective audits, evaluations, and investigations.In carrying out its mandate, SSA/OIG providestimely, useful, and reliable information and adviceto SSA officials, Congress, and the public.

The articles in this issue of the United StatesAttorneys' Bulletin were contributed by the staffof the SSA/OIG's Office of the Chief Counsel(OCCIG). OCCIG's primary duty is to provideindependent legal advice and counsel to the IG onvarious matters, including statutes, regulations,legislation, and policy directives. OCCIG alsoadvises the IG on investigative procedures andtechniques, as well as legal implications andconclusions to be drawn from audit andinvestigative material. The Chief Counsel headsOCCIG. The office also includes a Deputy ChiefCounsel, a supervisory attorney, several staffattorneys, law clerks/paralegals, and anadministrative assistant. The majority of the staffis located at SSA headquarters in Baltimore,Maryland; however, there are several attorneys invarious field offices.

In addition to its advisory duties, OCCIG alsoplays an advocacy role in furtherance of the OIG'smission. OCCIG administers a civil monetarypenalty program, which seeks administrativeremedies against individuals, as well ascorporations, who violate sections 1129 and/or1140 of the Social Security Act, Pub. L. No.74-271, 49 Stat. 620 (1935). Moreover, attorneyswithin OCCIG serve as Special AssistantUnited States Attorneys in several districts.OCCIG attorneys litigate matters in administrativeforums, including the Merit Systems ProtectionBoard and the DHHS's Departmental AppealsBoard.

Additionally, OCCIG operates anattorney-on-call program. Individuals from otheragencies or organizations may call or e-mail theduty attorney to obtain guidance, assistance, andother information within SSA/OIG's purview. Theattorney-on-call frequently assists AssistantUnited States Attorneys with matters involvingfraud, waste, or abuse pertaining to SSA and itsprograms. This assistance includes, but is notlimited to, the development of language necessaryfor the prosecution of violations of Title 42 of theUnited States Code, the development of casesinvolving identity theft or Social Security numbermisuse under 18 U.S.C. 1028 and 1029, andresearch into issues particular to SSA fraud. TheOCCIG attorney-on-call may be reached bycalling (410) 965-6211, Monday through Fridayfrom 8:30 a.m. to 5:00 p.m. EST.

For more information on SSA/OIG, pleasevisit the website at http://www.ssa.gov/oig/index.htm.

2 UNITED STATES ATTORNEYS' BUL LET IN NOVEMBER 2004

Prosecuting Title II Cases: Protectingthe Social Security Trust Funds fromFraudJohn K. WebbSpecial Assistant United States AttorneyCentral District of California

I. Introduction

The Social Security Act of 1935 (the Act),enacted during the Great Depression, is generallyviewed as one of the most important legislativeaccomplishments in United States history. (See 42U.S.C. 301-1399). The Act established aprogram to provide lifetime payments to retiredworkers beginning at age sixty-five, set up thefederal system of unemployment insurance, andauthorized federal grants to the states for variouspurposes. The initial legislation of the 1935 Actlaid the foundation for the Social Securityprograms used today by millions of Americans.The Act has been amended many times during theintervening years, but its original purpose remainsthe same: "to ameliorate the rigors of life, thetragic consequences of old age, disability, loss ofearnings power, and dependency on private orpublic charity." See Dvorak v. Celebrezze, 345F.2d 894, 897 (10th Cir. 1965). Since 1935, SocialSecurity benefits have increased, and the programhas been broadened to include benefits forworkers' spouses and minor children, for thesurvivors of deceased workers, and for disabledworkers. These programs are known as Title IIbenefits programs and are administered by theAct.

II. The Title II benefits programsOld-Age, Survivors, and Disability Insurance(OASDI).

During 2003 SSA made Title II benefitspayments to 32,347,974 retired workers anddependents; 6,875,054 survivors; and 7,221,268disabled workers and dependents. See 2003OASDI Trustees Report, available athttp://www.ssa.gov/OACT/TR/TR03/. TheFederal OASDI Trust Fund was established onJanuary 1, 1940, as a separate account in the

United States Treasury, while the FederalDisability Insurance (DI) Trust Fund, anotherseparate account in the United States Treasury,was established on August 1, 1956. All thefinancial operations of the OASDI and DIprograms are handled through these respectivefunds. The primary receipts of the two funds areamounts appropriated to each of them, underpermanent authority, on the basis of contributionspayable by workers, their employers, andindividuals with self-employment income, in workcovered by the OASDI program.

All employees, and their employers, incovered employment, are required to paycontributions with respect to their wages. Allself-employed persons are required to paycontributions with respect to their covered netearnings from self-employment. Generallyspeaking, an individual's contributions, or taxes,are computed on wages or net earnings fromself-employment, or both wages and netself-employment earnings combined, up to aspecified maximum annual amount. Thecontributions are determined first on the wagesand then on any net self-employment earnings,such that the total does not exceed the annualmaximum amount.

The monthly benefit amount to which anindividual (or his spouse and children) maybecome entitled under the OASDI program isbased on the individual's taxable earnings duringhis lifetime. According to the 2002 OASDITrustees Report (available at http://www.ssa.gov/OACT/TR/TR02/), about 154 million personsworked in OASDI-covered employment orself-employment in 2002. Approximately ninety-six out of one hundred workers in paidemployment and self-employment remain coveredor eligible for coverage, and, as of December 31,2002, about ninety-two percent of the populationaged sixty-five and over were receiving benefits.In addition, about ninety-seven percent of personsaged twenty to forty-nine who worked in coveredemployment in 2002 acquired survivorshipprotection for their children under age eighteen


(and surviving spouses caring for children underage sixteen). About ninety percent of persons agedtwenty-one to sixty-four who worked in coveredemployment in 2002 are eligible to receivemonthly cash benefits if they suffer a severe andprolonged disability.

A. Disability Insurance Benefits Program

The object of the Disability InsuranceBenefits Program (DIB) is to replace part of theearnings lost because of a physical or mentalimpairment. M onthly benefits are paid to eligibledisabled persons and their eligible auxiliarybeneficiaries throughout their period of disability.There are no restrictions on the use of benefitsreceived by beneficiaries. Disability benefitscannot be paid to a person confined in a penalinstitution because of a felony. Monthly benefitsmay be paid to:

disabled workers under age sixty-five andtheir families;

unmarried persons disabled before agetwenty-two who continue to be disabled; and

disabled widows or certain surviving divorcedspouses ages fifty to fifty-nine who weredisabled at the time of the worker's death orbecame disabled within a specified periodthereafter.

Generally, to have disability protection forone's self and family, it is necessary to have SocialSecurity credits for five years out of a ten yearperiod ending when the disability begins. Workersdisabled at age forty-three or older need credit formore than five years of work. A person disabledbefore age thirty-one may require as few as oneand a half years of credited earnings. Medicalevidence of the disabling condition is required,and medical recovery and/or work activity areevents that affect entitlement or continuedentitlement to disability benefits.

B. Retirement Insurance Benefits Program

The objective of the Retirement InsuranceBenefits Program (RIB) is to replace part of theearnings lost because of retirement. M onthlybenefits are paid to eligible retired workers andtheir eligible dependents. There are no restrictionson the use of benefits by a beneficiary. MonthlyRIB (also called old-age insurance benefits) maybe payable to an individual age sixty-two or over

who meets the earnings requirement of being fullyinsured. Monthly spouse's and child's insurancebenefits are also payable on the earnings record ofan individual entitled to retirement benefits, ifthey are eligible auxiliaries. Social Securitybenefits are based upon the worker's earnings asestablished by the Social Security Administration(SSA). For this reason, the SSA maintains acomplete record of the earnings of each workercovered by Social Security. These earnings areused to determine entitlement to retirementbenefits and the monthly amount of the benefits.

C. Survivor's Insurance Benefits Program

The Survivor's Insurance Benefits Program(SIB) pays monthly cash benefits to eligibledependents of deceased workers. Survivorseligible for monthly cash benefits include widowsand widowers, and surviving divorced wives orhusbands who were married to the deceasedworker for at least ten years. Age requirements arelower for disabled survivors and survivors whohave dependents of the insured worker in theircustody.

III. Impact of fraud on the SSA benefitsprograms

The Title II programs have sufferedsignificant episodes of fraud, and the costs to theSocial Security trust funds can no longer beignored. One who wrongfully applies for and/orreceives benefits payments under any of the TitleII programs may be subject to criminal liabilityunder 42 U.S.C. 408(a)(1)-(8), which sets forthpenalties for felony fraud violations under Title IIof the Act. The Social Security felony fraudstatute can be used separately or in concert withgeneral federal criminal statutes found in Title 18,to prosecute fraud in benefits programs. A keyrisk factor in Title II programs are individualswho feign or exaggerate symptoms to becomeeligible for disability benefits, and those who failto report changes in resources or othercircumstances that would make a recipient of TitleII benefits ineligible to continue to receivepayments. Eligibility for the Title II programs isoften complex and difficult to verify, and SSA'sability to properly determine a recipient's initialand continued eligibility, and the correct monthlybenefit due that recipient, is directly dependentupon SSA's ongoing access to accurate andcurrent information regarding the recipient.


As is evident, even the slightest error or fraudin the overall process can result in millions ofdollars in overpayments or underpayments ofSocial Security benefits. It is therefore imperativethat fraud in the Title II programs be identifiedand, wherever possible, prevented. The otheralternative, after the fraud has been committed, isto prosecute and recover benefits overpaymentsfrom those who perpetrate the fraud. To thateffect, the Congress and the SSA havecollaborated to make fraud against the Title IIprograms punishable as a felony, resulting inpenalties of imprisonment up to five years and afine of as much as $250,000.

Between October 1, 2002 and March 31,2003, the Office of the Inspector General for theSocial Security Administration (SSA/OIG)received 51,311 fraud allegations from a varietyof sources, including private citizens (23,951),anonymous tips (8,782), SSA employees (7,402),law enforcement (10,120), public agencies (323),and SSA benefits recipients (726). See SSA/OIG2003 Semiannual Report to Congress, available athttp://www.ssa.gov/oig. At the same time,SSA/OIG opened 9,170 potential fraud cases andinvestigated and closed approximately 9,389 casesnationwide. During the same period,investigations by special agents of SSA/OIGculminated in 2,677 arrests and indictmentsinvolving Social Security fraud, which resulted in1,008 criminal convictions. The SSA statisticssuggest an alarming increase in fraudulent claimsthat threaten the integrity of the Social SecurityTrust Funds and block access by needy applicantswith legitimate claims for benefits. In many cases,benefits paid to needy applicants serve as alifeline that means the difference between survivaland death. As disturbing as the statistics are, theyrepresent only the identified instances ofoverpayments in the SSA programs. They do notrepresent undetected overpayments stemmingfrom fraud, waste, and abuse. If the current trendscontinue, thousands more potential SSA fraudcases will focus increased attention on the felonyprovisions of the Act and result in scores offederal and/or state indictments and convictions.

The opportunity for fraud is enhanced becauseSSA is an agency that has, historically, madeextraordinary efforts to ensure accessibility to itsbenefits programs by qualified Americans.According to current estimates by auditors of theSSA, fraud against the various SSA benefitsprograms may account for as much as ten percent

of all costs to the Social Security Trust Funds.SSA/OIG 2003 Semiannual Report to Congress,available at http://www.ssa.gov/oig/ADOBEPDF/sar102002032003.pdf. Consideringthe volume and amount of payments SSA makeseach month, even the smallest percentage of fraud,waste, and abuse can result in the loss of millionsof dollars. It is not surprising, then, that fraudperpetrated on Social Security benefits programshas increasingly attracted national attention.

IV. Statutory authority

The felony fraud provisions of the Title IIprograms are found in 42 U.S.C. 408(a)(1)-(8)of the Act. Most fraud involving the Title IIbenefits programs is the result of deliberatedeception, and arises when an applicant falsifies adocument or record offered as proof of disability,or misrepresents material facts, such as paternity,on an application for benefits. Fraud can also bethe result of omission when a beneficiary fails toreport a change in circumstance, such as marriage,a new source of income, incarceration, removalfrom custodial care, or failure to report the deathof a parent or spouse, while continuing to spendchecks or direct deposits by SSA. The followingare representative of violations that could result incriminal prosecution for Social Security fraud:

furnishing false information of identity inconnection with the establishment andmaintenance of Social Security records, orwith the intent to gain information as to thedate of birth , employment, wages, or benefitsof any person;

forging or falsifying SSA documents;

conspiring to obtain or allow a false,fictitious, or fraudulent claim;

using a Social Security Number (SSN)obtained on the basis of false information orfalsely using the SSN of another person, forthe purpose of obtaining or increasing apayment under Social Security or any otherfederally funded program, or for any otherpurpose;

altering, buying, selling, or counterfeiting aSocial Security card;

disclosing, using, or compelling the disclosureof the SSN of any person for unauthorizedpurposes;


making or causing to be made a falsestatement or representation of a material factfor use in determining rights to SocialSecurity benefits, Medicare, SupplementalSecurity Income, or Black Lung benefits;

making or causing to be made any falsestatement or representation of a material factin any application for any payment or for adisability determination under the SocialSecurity Act;

making or causing to be made any falsestatement or representation as to whetherwages were paid or received, the amount ofsuch wages, the period during which wageswere paid or received, or the person to whomsuch wages were paid;

making or causing to be made any falsestatement or representation as to whether netearnings from self-employment werereceived, the amount of such earnings, theperiod during which such earnings werereceived, or the person who received them;

concealing or failing to report any eventaffecting the initial or continued right topayment received, or to be received by aperson individually or on behalf of another;

converting all or any part of a paymentreceived on behalf of a beneficiary to a useother than for the use and benefit of thatbeneficiary;

falsely representing oneself to be an employeeof the U.S. Government;

accessing SSA computer records withoutauthorization;

disclosing unauthorized information from theSSA's systems of records; or

receiving or soliciting a bribe, illegal gratuity,or contribution to or supplementation ofsalary for U.S. Government service.

The major difference between violations offederal criminal statutes under Title 18 and thosein the Social Security Act (Title 42) is thecriminal intent required. See U. S. v. Lichenstein,610 F.2d 1272, 1277 (5th Cir. 1980) ("Thecriminal intent required for a violation of thefederal criminal provision is merely the intent todeceive or mislead, not an intent to defraud ordeprive someone of something by means of thatdeceit."). In most Title 42 crimes, the relevant

intent is to defraud or deprive someone ofsomething, while the Title 18 criminal provisionsusually require only an intent to deceive. Forexample, simply making a mistake or givinguntrue information, without any intent to deceiveor mislead, does not constitute the requisite intentfor a conviction under Title 18 crimes. U. S. v.Lange, 528 F.2d 1280 (5th Cir. 1976).

V. The Title II criminal fraudprovisions: 42 U.S.C. 408(a)(1)-(8)

Title II of the Act, cited as 42 U.S.C. 408(a)(1)-(8), contains the Act's primarycriminal provisions and carefully spells out theAct's restraints on fraud by specifyingrequirements for disclosure of specific events, andidentifying facts that affect the right to payment ofSSA benefits. Initially enacted as a misdemeanorstatute, Congress amended Title II of the Act in1981 to increase the penalty, making SocialSecurity fraud (including SSN misuse) a felony,punishable by five years in prison and a fine up to$250,000. See Pub. L. No. 97-123, 95 Stat. 1659(1981 amendments).

A. 42 U.S.C. 408(a)(1)(A)-(C)

The elements required to prove a violation of 408(a)(1)(A)-(C) are:

a false statement or representation;

used to cause payment of benefits;

where no payment is authorized; and

whether wages were paid or received or theamount of wages or the period for which theywere paid.

See 42 U.S.C. 408(a)(1)(A)-(C).Criminal liability under 42 U.S.C. 408(a)(1)

arises if: (i) an individual makes a false statementor representation about income in order to securea higher benefit; or (ii) an employer or individualmakes false statements in reporting wages orearnings to SSA or the IRS. For example, adefendant was incarcerated at the time he askedhis friend to put his son on the payroll of thefriend's company as a "no-show" employee so thathis son would have health insurance. The friendpaid defendant's son $500 per week, issued a $340payroll check and withheld $160 in federal andstate taxes in the son's name. Defendant and hisson repaid the friend $500 each week in cash. The


son never worked for the friend's company, andthe friend kept the repaid cash without reporting itas income, while the friend's company claimed adeduction for the son's wages on its federal andstate tax returns and made wage and earningsreports to SSA and the IRS. As a result of his jobwith the friend's company, and the falsestatements as to the son's wage and earnings madeby the friend and his company, the son laterapplied for and qualified for $7,700 in SSAbenefits. United States v. Mauro, 80 F.3d 73 (2dCir. 1996). See also United States v. Kaczowski,882 F. Supp. 304 (W.D.N.Y. 1994) (defendantwas placed in a "no-show" job on the payroll of agame room in order to launder gambling receipts).

B. 42 U.S.C. 408(a)(2)

The elements required to prove a violation of 408(a)(2) are:

defendant makes or causes to be made a falsestatement or representation;

of a material fact;

in any application for any payment or for adisability determination.

See 42 U.S.C. 408(a)(2).Criminal liability under 42 U.S.C. 408(a)(2)

arises if an individual makes or causes to be madea false statement, or misrepresents a material fact,on any application for benefits under any SSATitle II program. For example, a defendant madefalse statements in an application for payment ofSSA Survivor's Benefits by stating that she hadnever before filed for benefits under any othername or SSN and had never used any SSN orname other than her own. In fact, the defendanthad used numerous false SSNs on various W-4forms from several different employers. SeeUnited States v. Kienenberger, 168 F.3d 496 (8thCir. 1998).

C. 42 U.S.C. 408(a)(3)


defendant makes or causes to be made anyfalse statement or representation;

of a material fact;

for use by the Social Security Administrationin determining rights to payment of benefits.


arises if an individual makes or causes to be madea false statement, or misrepresents a material fact,used in determining entitlement to benefits. Forexample, a defendant, when completing questionsabout his work activities, falsely stated on an SSAform that he had not worked for four years, andwas disabled and unable to perform work. In truth,the defendant was working at the time hecompleted the SSA form and had been employedfull time for several years as a computer workerby the Internal Revenue Service. United States v.Codrington, No. CR-03-458-GAF (C.D. Cal. Jan.29, 2003).

D. 42 U.S.C. 408(a)(4)


defendant received Social Security benefits onbehalf of another person;

defendant had knowledge of an eventaffecting the other person's continued right toSocial Security payments;

defendant knowingly concealed or failed todisclose this event to the Social SecurityAdministration; and

defendant concealed or failed to disclose thisevent to the Social Security Administrationwith the intent to fraudulently secure paymentof Social Security Income benefits in anamount greater than was due the other personor when no payment to the other person wasauthorized.

See 42 U.S.C. 408(a)(4); United States v.Baumgardner, 85 F.3d 1305, 1310-11 (8th Cir.1996).

Criminal liability under 42 U.S.C. 408(a)(4)arises if an individual knowingly conceals a factto secure a benefit to which he or she is notentitled. For example, a defendant, whencompleting questions about his work activities,falsely stated on an SSA form that he had notworked for four years, and was disabled andunable to work. In fact, defendant was working atthe time he completed the SSA form and had beenemployed full time for several years by theInternal Revenue Service. United States v.Codrington, No. CR-03-458-GAF (C.D. Cal. Jan.29, 2003).


With respect to the first element, courts haveconstrued the term "event" broadly, to includeessentially anything that would affect the right topayment. United States v. Baumgardner, 85 F.3d1305, 1310-11 (1996). See also United States v.Huckaby, 698 F.2d 915 (8th Cir. 1982). Thesecond element is self-evident andstraightforward, requiring that the defendant mustknow of the event affecting his right to paymentand knowingly conceal it. The third elementrequires that the concealment must have been"with an intent fraudulently to secure payment...inan amount greater than was due." 42 U.S.C. 408(a)(4).

In United States v. Cormier, 639 F.2d 1177(8th Cir. 1981), the prosecution showed that thedefendant concealed or failed to disclose heremployment and earnings to the Social SecurityAdministration, with the "intent to securefraudulently unauthorized benefits." Theprosecution offered evidence showing that thedefendant knew she was legally obligated todisclose such information and knew she wasrequired to file annual income reports because heroriginal application for benefits provided notice ofthe reporting requirement. Further, defendantknew of the reporting requirement because her jobas a Social Security service representativerequired her to inform other applicants andbeneficiaries of their continuing obligation to doso. Id. at 1181.

In the case of United States v. Phillips, 600F.2d 535, 536 (5th Cir. 1979), the court definedthe government's burden in proving "fraudulentintent" under 408(a)(4). The court stated that:

First, the government must show that thedefendant knew that he was legally obligatedto disclose certain information. Second, thegovernment must prove that the defendantknew that by withholding the information hewould receive greater payments than he wasentitled to. In other words, a defendant is notguilty under 408(d) unless he is aware boththat he is deceiving the government and thatthe government will pay out more moneybecause of his deception.

Theft of public funds by the fraudulent receiptof Social Security benefits on a continual basismay be considered relevant conduct under theSentencing Guidelines when determining the baseoffense level in a case where the conduct is part ofthe same course of conduct or common scheme or

plan as the offense of conviction. SeeUnited States v. Silkowski, 32 F.3d 682 (2d Cir.1994). In Silkowski, the court found that when adefendant engages in a clearly identifiable andrepetitive "behavior pattern" of a specifiedcriminal activity, such as continual illegal receiptand conversion of Social Security benefits, adistrict court may rely on such conduct as"relevant" under the federal SentencingGuidelines, regardless of whether that conductwas charged as part of the offense of conviction.Id.

E. 42 U.S.C. 408(a)(5)


the defendant knowingly and willfullyconverts;

a benefit payment, or any part of a benefitpayment;

accepted on behalf of another;

to an unauthorized use.


arises if an individual knowingly and willfullyconverts to an unauthorized use a benefit that heor she has accepted as payee on another's behalf.For example, a criminal violation occurs if adefendant applies (a formal application to becomeRepresentative Payee is required by SSA) tobecome Representative Payee for the use andbenefit of another (spouse, parent, grandparent,child, friend), and, having received payment(s) ofa benefit from SSA on behalf of another,knowingly and willfully converts the payment(s)to his own use, rather than for the use and benefitof the intended beneficiary. A common violationoccurs when a Representative Payee intentionallyconceals the death of another in order to continueto receive and spend the benefits payments madeby SSA to the Representative Payee.

F. 42 U.S.C. 408(a)(6)


defendant willfully, knowingly, and withintent to deceive as to his true identity or theidentity of another person;


furnishes, or causes to be furnished, falseinformation to SSA;

with respect to any information used by SSAto establish or maintain records.


arises when a person willfully, knowingly, andwith the intent to deceive the SSA as to his or hertrue identity, or the true identity of any otherperson, furnishes or causes another to furnish falseinformation to the SSA that SSA uses to establishand maintain earnings records. A typical violationof 408(a)(6) occurs when an individual makesfalse statements on an application for a new SSN(SSA Form SS-5) for the purpose of obtaining asecond SSN to create a false identity.

The most common false statement occurswhen a defendant, in response to the followingquestion on the SS-5: "Has applicant or anyoneacting on his/her behalf ever filed for or receiveda Social Security number card before?" falselyanswers "no," when, in fact, the defendant knowshis answer is false and it is his intent to deceivethe Commissioner of Social Security as to his trueidentity. The defendant can be charged with aviolation of 408(a)(6) for the false statement onthe SS-5 as well as any subsequent use of thesecond SSN.

A person may also be subject to criminalpenalties under 408(a)(6) for furnishing falseinformation in connection with earnings records.See 20 C.F.R. 422.108. Criminal liability canalso arise under 42 U.S.C. 408(a)(6) when anemployer, knowingly, and with intent to deceiveas to the identity of another person (such as anemployee), furnishes, or causes another to furnishon the employer's behalf, false information to theSSA that SSA uses to establish or maintain itsrecords. This usually occurs when an employer,who knows that an employee is working whileusing a false SSN and/or identity, makes falsestatements in wage and earnings reports to SSAand the IRS as to such wages and earnings oridentity. This charge is especially applicable tocompanies who frequently hire individuals thatthe company suspects have provided falsedocuments in order to work. Prosecution ofvulnerable employees for trying to make a livingin order to survive is unappealing for a number ofreasons. However, prosecution of offenders whosecorporate hiring policies are the source of theproblem is a more cost-effective and practical

approach. Companion charges for prosecution ofcorporations caught violating 42 U.S.C. 408(a)(6) usually include 18 U.S.C. 1001(false statement on I-9) and 1546 (immigrationfraud).

G. 42 U.S.C. 408(a)(7)(A)-(C)

The felony provisions of 42 U.S.C. 408(a)(7)(A)-(C), which deal with the misuse ofan SSN, are particularly effective in chargingcases involving identity theft or where anindividual has tried to manipulate theidentification systems currently in place, or wherean individual has entered the country illegally. Inmany cases, recipients of Social Security benefitsunder one Title II program will be caught using afalse identity and SSN to apply for, and collect,benefits under a second (or the same) Title IIbenefit program. This has been a commontechnique used by criminal travelers, who usemultiple identities to apply for, and collect,benefits from SSA offices in different regions ofthe country.

The elements of proof for each subsection of 408(a)(7) are more flexible than those requiredby 18 U.S.C. 1028, a better known identity theftstatute, that also contains subsections dealing withthe misuse of an SSN. What follows is adescription of each of the three subsections of 408(a)(7), including a breakdown of theelements necessary to prove a charge under each,and a brief suggestion of when and how eachsubsection should be charged. 42 U.S.C. 408(a)(7)(A)The elements required to prove a violation of 408(a)(7)(A) are:

defendant, with intent to deceive;

willfully and knowing uses a Social Securityaccount number;

assigned to him by the Commissioner of SSA;

based on false information furnished bydefendant or another person to theCommissioner of Social Security.

See 42 U.S.C. 408(a)(7)(A).Any fraudulent use of an SSN, whether made

up by the offender or obtained on the basis offalse information supplied to SSA, is actionableand constitutes a felony for purposes of 408(a)(7)(A). For example, a subject in the


United States on a tourist visa secures a nonworkSSN using his French passport. The subject thenuses an alias to file a bogus application forasylum, resulting in United States Citizenship andImmigration Services (USCIS) approval andissuance of a green card and alien registrationnumber. The subject then uses his new name andillegally procured USCIS documents to apply fora second SSN, thus completing the creation of anew identity. The subject then uses the secondSSN to secure credit cards, open bank accounts,attend flight training, and make applications foremployment as a pilot. The subject's use of theSSN is actionable because he used false andfraudulent documents (deceptively procured fromthe USCIS) to deceive SSA into issuing him anew SSN, and he may be charged with a felonyunder 408(a)(7)(A). See United States v. Pryor,32 F.3d 1192, 1194 (7th Cir. 1994) (defendantacted "willfu lly, knowingly, and with intent todeceive," in illegally using an SSN obtained onthe basis of false information). 42 U.S.C. 408(a)(7)(B)The elements required to prove a violation of 408(a)(7)(A) are:

false representation of a Social Securityaccount number;

with intent to deceive;

for any purpose.

See United States v. Means, 133 F.3d 444, 447(6th Cir. 1998) (setting forth the elements forprosecution of a case under 42 U.S.C. 408(a)(7)(B)). See also United States v.McCormick, 72 F.3d 1404, 1406 (9th Cir. 1995).

The majority of jurisdictions apply the Meansstandard as set forth above. However, a fewjurisdictions break down the language of 408(a)(7)(B) to include a fourth element:

for any purpose;

with intent to deceive;

represented a particular Social Securityaccount number to be his;

which representation is false.

See United States v. O'Brien, 878 F.2d 1546 (1stCir. 1989).

Subsection (B) is the most commonly chargedsubsection of 408(a)(7) because of its broadapplication and straightforward elements of proof.

It is typically charged whenever a subject hasmisrepresented an SSN to open a bank account;apply for a credit card; secure credit for a cellphone; rent or lease an apartment or car; apply foremployment; or enroll in flight training. Thecharging standard, "for any purpose," is broad andself-explanatory, and any false representation ofan SSN, with an intent to deceive, is actionableconduct that may be charged as a felony under 408(a)(7)(B). See United States v. Silva-Chavez,888 F.2d 1481 (5th Cir. 1989).

The legislative history of 408(a)(7)(B)demonstrates that Congress intended to extendcriminal liability for false use of an SSN beyondthe false use of a number to obtain or increasebenefits under the Social Security Act, of which itis part. See S. Rep. No. 938 at 490 (1976),reprinted in 1976 U.S.C.C.A.N. 2897, 4030, 4194("The Senate amendment...makes a misdemeanorthe willful, knowing, and deceitful use of a socialsecurity number for any purpose."). In 1981Congress amended the section, changing theoffense from a misdemeanor to a felony andadding the language "or for the purpose ofobtaining anything of value from any person"before "or for any other purpose." See Pub. L. No.97-123, 95 Stat. 1659, 1663-64 (1981). While theHouse Conference Report accompanying theamendment offers no explanation of the reasonsfor the change, H.R. Conf. Rep. No. 409, at 15-16(1981), reprinted in 1981 U.S.C.C.A.N. 2681,2687-88, the text of the amendment makes clearCongress' intent both to punish a broader range ofacts and to impose a stiffer penalty. SeeUnited States v. Darrell, 828 F.2d 644 (10th Cir.1987).

Direct evidence is not always necessary inorder to prove that a defendant intended to use aSocial Security card or number for deceptivepurposes. Mere possession of a Social Securitycard or number that does not belong to adefendant is sometimes sufficient to support afinding that the defendant intended to deceive.United States v. Charles, 949 F. Supp. 365 (D.V.I.1996). In Charles, the government was unable toproduce direct evidence that the defendant hadactually applied for a driver's license using a falseSSN, but concluded that the jury could infer thatthe defendant received the Social Security cardthrough false representations when thegovernment's evidence showed that: (1) the PoliceDepartment Licensing Section had printeddefendant's license; and (2) generally, in order to


obtain such a license, an applicant must giv

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