Citation Nr: 21077503 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 10-24 544 DATE: December 30, 2021 ORDER 1. Challenges to the propriety of the creation of an overpayment in the amount of $9,436.61 are granted. 2. Challenges to a denial of a waiver of an overpayment debt in the amount of $9,436.61 are dismissed. FINDINGS OF FACT 1. The Veteran is a Department of Veterans Affairs (VA) beneficiary in receipt of a nonservice-connected, need-based VA pension. 2. On March [REDACTED], 2006, a Massachusett state court, i.e., the Trial Court of Massachusetts for the Brockton District (Brockton Court) issued a warrant for arrest of the Veteran based on an unspecified proffer as to the events establishing probable cause in support of a conclusion that the Veteran had committed a penal offense of "destruction of property." 3. In the State of Massachusetts, the offense of a destruction of property qualifies as a felony. 4. On December 5, 2007, a VA Regional Office (RO), upon being notified in October 2007 that the warrant had been issued on March [REDACTED], 2006, issued the Veteran a notice proposing to create an overpayment based on his fugitive felon status arising from the fact that the warrant had been issued. 5. On December 12, 2007, i.e., one week after the RO issued the Veteran its proposal notice, the Brockton Court recalled its March [REDACTED], 2006, warrant by utilizing the Brockton Court's warrant recall form. 6. The content of the Brockton Court's warrant recall form unambiguously demonstrated that the Brockton Court rendered the March [REDACTED], 2006, warrant issued against the Veteran null and void ab initio. 7. In January 2008, the Veteran, acting through a charitable organization other than a Veterans' Services Organization (VSO), notified the RO that the warrant had been recalled in February 2007. 8. In July 2008, the RO upon confusing the meaning of the word "recalled" (which indicated the Brockton Court's determination that the warrant had been issued either in error or without sufficient probable cause) with the meaning of the word "cleared" (which would have indicated that the Veteran was either duly arrested pursuant to the warrant or had turned himself into custody of law enforcement authorities) construed the Veteran's January 2008 notice as indicative of the fact that he had been duly arrested based on the warrant issued for a felony offense. 9. In July 2008, the RO issued the Veteran a final action notice creating an overpayment debt that had been charged to the Veteran. 10. In July 2008, VA Debt Management Center (DMC) calculated the amount of the Veteran's overpayment debt in the amount of $9,436.61. 11. In July 2008, VA Committee on Waivers and Compromises (COWC) denied the Veteran's claim for a waiver of the overpayment debt. 12. In July 2021, the Veteran had a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). 13. During his Board hearing, the Veteran testified that he had multiple warrants issued against him, but these warrants were based on misdemeanor offenses. 14. The Veteran's waiver claim does not present a live case or controversy. CONCLUSIONS OF LAW 1. The overpayment in the amount of $9,436.61 was improperly created. 38 U.S.C. § 5313B; 38 C.F.R. § 3.666. 2. The claim for a waiver of the overpayment debt in the amount of $9,436.61 is moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1974 to December 1975. These matters are presently before the Board on his appeal from the July 2008 RO final action notice (creating an overpayment that was calculated by DMC to be in the amount of $9,436.61) and the July 2008 COWC decision denied the Veteran's claim for a waiver of the aforesaid overpayment debt. At the onset of its discussion, the Board notes that the Veteran's challenges ensued from the RO's classification of the Veteran as a "fugitive felon" during the period that ran from March [REDACTED], 2006, to February [REDACTED], 2007. VA laws prohibit the payment of VA benefits, to include nonservice-connected pension, for any period during which the beneficiary is deemed a fugitive felon. 38 U.S.C. § 5313B; 38 C.F.R. § 3.666(e). Critically here, the phrase "fugitive felon" is a legal term of art for the purposes of VA laws, and its meaning markedly differs from a layperson's impression of what this phrase might mean, i.e., VA laws have very little in common with the impression created by cinematography and literature where law enforcement officers are physically chasing a fleeing criminal. Rather for VA law purposes the phrase "fugitive felon" means an individual who takes any action to avoid prosecution for his/her offense that qualifies as a felony under the laws of the jurisdiction where the offense was committed, 38 C.F.R. § 3.666(e)(2)(i), or an individual who violates the terms or conditions of his/her probation sentence or parole (imposed in connection with conviction of an identically qualified felony offense), 38 C.F.R. § 3.666(e)(2)(ii). Further, a "high misdemeanor" charge, i.e., a charge for an offense that qualifies as a misdemeanor under the laws of the state that issued the warrant but would have qualified as a felony offense under Federal law also triggers the fugitive felon status for the purposes of VA laws, 38 C.F.R. § 3.666(e)(3), under § 3.666(e)(2) circumstances. The process of obtaining a warrant is generally commenced by a prosecutor or a probation officer submitting a "proffer," i.e., an affidavit or a pre-printed form operating as a de facto sworn statement, to a court having the authority to issue an arrest warrant. A proffer details the events underlying the finding of probable cause, i.e., the events supporting a reasonable person's conclusion that a criminal offense was committed, or that the terms or conditions of parole or probation were violated. In addition, the proffer identifies the individual against whom a warrant is being sought. Upon reviewing the proffer and finding that probable cause has been duly established, the court issues a warrant. Upon that development, the individual named in the warrant becomes subject to arrest. Notably, the warrant may but not must trigger law enforcement officers' attempts to apprehend the individual named in the warrant. If no such attempts are taken, for instance, because law enforcement officers in the jurisdiction where the warrant was issued are unaware of the actual whereabouts of the individual named in the warrant, e.g., if (s)he is homeless, the warrant is entered into a database available to law enforcement officers both locally and nationwide: depending on the database networks in which the office that procured the warrant participates. Accordingly, the individual named in the warrant might be arrested in connection with events wholly unrelated to the offense charged in the warrant: simply because, upon encountering this individual is connection with his/her other conduct that provides probable cause to believe that (s)he committed a different penal violation, law enforcement officers might consult the database and upon locating the record execute the warrant, i.e., arrest the individual on the charges stated in the warrant (in addition to or independently of the actions that law enforcement officers might take with regard to the individual's conduct that triggered the database check.) Alternatively, if the individual finds out about the warrant through other means, e.g., because his/her benefits are no longer deposited on the individual's bank account, (s)he might turn himself/herself into the custody of law enforcement officers. Hence, the statement that a warrant was "duly executed" means that the individual named in the warrant was placed in custody of law enforcement officers who were aware or became aware of the existence of the warrant, regardless of whether the process involved a typical arrest process or the "turn-in" process. Moreover, while a later criminal proceeding might result in a bench or jury finding that the individual was not guilty of the offense charged in the warrant, a not-guilty verdict cannot establish the fact that the warrant was issued in error. Rather, only a finding by the issuing court that the warrant was issued in error or without sufficient probable cause (or a finding of a court presiding over the named individual's civil rights claim alleging that the warrant was obtained without probable cause and amounted to malicious prosecution) would render the warrant null and void ab initio. See, e.g., Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). Hence, to establish that a veteran was wrongly qualified by VA as a fugitive felon, (s)he should demonstrate either that the warrant for his/her arrest was deemed null and void by the court of appropriate jurisdiction or that the warrant, while not nullified, was issued for an offense that did not qualify as a felony or a high misdemeanor. Notably, the legal parlance used in connection with an execution of a warrant, i.e., in connection with having the individual named in the warrant placed in custody of law enforcement officers, may differ alas, sometimes rather substantially depending on the state and even the county where the warrant has been executed. While law enforcement officers and courts in the majority of the United States states and counties utilize the word "cleared" to designate a duly executed warrant, some states and counties might use different vernacular. Further, a few states, e.g., the State of California, utilizes the phrase "a cleared warrant" to designate a warrant that has been nullified, while the other states use the phrase "a cleared warrant" to indicate a completely opposite, i.e., the fact that an arrest of the person named in the warrant was duly executed or that (s)he has voluntarily turned himself/herself in. Not surprisingly, such a disparity in terminology often causes undue confusion. Accordingly, the proper mode for determining the nature of a document related to execution or nullification of a warrant requires a careful examination of the statements made in the document addressing the disposition of the warrant or relevant decisions issued by the court having appropriate jurisdiction. Alas, both the finesse and importance of such a determination often escapes VA and, on occasion, results in an erroneous qualification of a VA beneficiary as a "fugitive felon." Unfortunately, the case at bar presents an illustration of such a regretful confusion. The events at bar began to unfold in October 2007, when VA received a notice that, on March [REDACTED], 2006, the Brockton Court issued a warrant in the Veteran's name. The notice indicated that the offense alleged in the warrant was "destruction of property." Notably, under the Ann. L. Mass. 266 §127, the act of destruction of real or personal property of another qualifies as a felonious offense. Therefore, it is hardly surprising that, on December 5, 2007, the RO issued the Veteran a notice proposing to charge him with an overpayment on the grounds of his fugitive felon status effective March [REDACTED], 2006. One week after the issuance of the RO's proposal notice (i.e., on December 12, 2007), the Brockton Court recalled the warrant by utilizing the "Recall of Warrant" form. The Brockton Court's "Recall of Warrant" form demonstrated that the warrant was nullified, and law enforcement authorities were directed to remove any information about the warrant from all databases to ensure that the warrant would never be executed. It appears that a charitable non-VSO organization faxed a copy of the Brockton Court's "Recall of Warrant" form to the RO on January 2, 2008. Five months went by. On July 2, 2008, the RO misconstrued the Brockton Court's use of the word "recalled" with regard to the warrant as a statement establishing that the warrant was "cleared" on December 12, 2007, by the Veteran being placed in custody of law enforcement authorities based on a proper execution of the warrant. Therefore, the RO issued a final action notice informing the Veteran that he had been charged with an overpayment based on his fugitive felon status. The language used by the RO in its final action notice demonstrated that the RO failed to examine the content of the Brockton Court's "Recall of Warrant" form. In July 2008, DMC issued a demand letter informing the Veteran that the amount of the overpayment debt created by the RO's June 2, 2008, final action notice was $9,436.61, and that VA would recoup the debt through incremental withholdings from his monthly nonservice-connected VA pension. Simultaneously with DMC's demand letter, COWC issued a decision on the Veteran's request for a waiver of his overpayment debt. COWC found that the Veteran's "wrongful activities" caused the creation of the debt and while conceding that the Veteran would experience financial hardships due to recoupment of his debt (since he had no assets or sources of income other than his VA non-service-connected pension) concluded that this fact was outweighed by the Veteran's unspecified wrongful activities. The Board notes, with concern, that COWC rendered its conclusion that the debt arose from the Veteran's "wrongful activities" without examining the Veteran's claim file. Moreover, COWC sought to justify its failure to examine the Veteran's claims file by the fact that the file was in the possession of the RO. However, COWC had both right and obligation to request access to the Veteran's claims file in connection with adjudicating his waiver claim. COWC's failure to perform its obligations resulted not only in a dubious conclusion as to the fact of the Veteran's fault in creating the alleged overpayment but also in COWC's error as to the end date of the alleged fugitive-felon period: since the RO determined that the period ended on December 12, 2007, while COWC somewhat inexplicably presumed that it ended on February 2, 2008. Later in July 2008, the Veteran filed a lay statement indicating that he was unaware of the issuance of the particular warrant in his name. The Veteran's lay statement suggested: (a) his understanding that there were two or more warrants issued against him; and (b) his impression that the very fact of a warrant being issued against the Veteran without his physical presence at the Brockton Court rendered the warrants legally deficient. The Board, therefore, takes this opportunity to point out that: (a) the record reflects only a single warrant charging the Veteran with the felony offense of destruction of property; and (b) no arrest warrant document is ever issued against a person if the person identified in the proffer is physically present before the court having jurisdiction to issue an arrest warrant. Indeed, in the event the person is present at the court in connection with probable cause underlying the charge, (s)he is placed in custody of the court officers (who qualify as law enforcement officers) by an oral order of the court and then held in confinement until availed to an arraignment, while if (s)he is present at the court in connection with another matter the proffer process is substituted by a prosecutor's oral motion and the court's oral order to court officers to take the person in custody based on the charged offense (and then, again, is followed by the arraignment process). Furthermore, the fact that the person named in the warrant is unaware of the warrant being issued is inapposite to the validity of the warrant. This is so because the process of issuing a warrant is different from a criminal trial, and no Confrontation Clause rights of the Sixth Amendment attach to the process of issuing a warrant. Therefore, it is exceedingly rare that the person named in an arrest warrant to be actually aware of the fact that the warrant is being issued at the time when the issuance process takes place (indeed, such a scenario could occur only if a person is present in court under his/her alias, but the court unaware of the person's alias implicated in a proceeding that triggered the person's presence at the court issues a warrant utilizing the person's actual name or another alias that has not yet been entered into law enforcement officers' database). In February 2009, the Veteran proceeding pro se filed VA Form 9, Substantive Appeal with the intention to have it operate as his Notice of Disagreement (NOD) and requested a Board hearing. In his de facto NOD, the Veteran reiterated that he was unaware of the warrant being issued. Later in February 2009, the RO informed the Veteran that his litigation was not in the appealed status due to his failure to file a proper NOD. Moreover, the RO construed the Veteran's request for a Board hearing as a request for an informal hearing before a Decision Review Officer (DRO) at the RO and, thus, scheduled such a hearing for May 5, 2009. On May 5, 2009, the RO officer docketed what appeared to be the notes generated by the DRO. The notes indicated that the Veteran informed the DRO that: (a) his warrant was "cleared" on February [REDACTED], 2007 (even though, in actuality, the warrant was never "cleared," rather, it was "recalled"); and (b) the Veteran would become homeless if DMC commenced withholdings from his nonservice-connected VA pension. In other words, the Veteran's first statement created an impression that he had been duly arrested pursuant to the warrant, while his second statement created an impression that the Veteran had not been homeless at any prior time. The DRO's notes also indicated that based on the Veteran's reference to his potential homelessness the DRO availed him to another opportunity to seek COWC's waiver of his overpayment debt. In January 2010, the Veteran filed a lay statement operating as his NOD, stating his impression that his overpayment was $8,337.61, even though in actuality it was $9,436.61. The Veteran also reiterated the fact that he was unaware of the warrant being issued, seemingly in his continuous belief that his awareness of this fact was legally required to render the warrant valid, even though as noted supra the Veteran erred in his belief. In February 2010, a VSO made an appearance in this matter as the Veteran's representative. In March 2010, the RO issued a Statement of the Case (SOC). In the SOC, the RO: (a) correctly stated that "the ultimate disposition of the [felony] charge" was inapposite to the issue of whether the beneficiary qualified as a fugitive felon for VA purposes; but (b) incorrectly stated that the fact of the warrant being "ultimately dismissed or recalled" was inapposite to the determination of whether the beneficiary qualified as a fugitive felon. Moreover, in support of its incorrect conclusion, the RO properly observed that, under the governing legal authority, the individual named in the warrant need not be actually fleeing from law enforcement officers to qualify as a fugitive felon. Therefore, the SOC demonstrated that the RO "mix[ed] apples and oranges, and many other fruits." McKnight v. United States, 27 F. Supp. 3d 575, 590 (D.N.J. June 25, 2014). Specifically, the RO conflated three distinct legal principles. First, as noted at the onset of this Order, it is true that a VA beneficiary need not be engaged in an actual flight from law enforcement authorities to be properly qualified as a fugitive felon. Second, as it was also noted at the onset of this Order, a warrant issued against VA beneficiary is not nullified if the beneficiary is later found not guilty on the charges stated in the warrant. However, as the Board also pointed out at the onset of this Order, the fact that the warrant was "recalled" or found issued in an act of malicious prosecution necessarily eliminates all bases for qualifying the beneficiary named in the warrant as a fugitive felon. Moreover, a warrant cannot be "dismissed": rather, only the underlying penal charge(s) could be dismissed by a judge (presiding over a bench trial) or a jury finding that the beneficiary named in the warrant was not guilty of the charged offense(s). (To keep the matters simple, the Board omits discussion of scenario when a prosecutor withdraws a charge or a motion to revoke parole or probation, or the charged beneficiary takes a nolo contendere plea or a plea that could be entered under the holding of North Carolina v. Alford, 400 U.S. 25 (1970), or People v. Serrano, 15 N.Y.2d 304 (1964), since none of these scenarios appears to be part of the circumstances at bar.) In April 2010, the VSO reiterated the Veteran's desire to commence a Substantive Appeal and his request for a Board hearing. In May 2010, the Veteran filed a VA Form 9, Substantive Appeal, reiterating his request for a Board hearing and arguing that COWC erred in its denial of his waiver claim. Later in May 2010, the Veteran filed a lay statement detailing difficulties he was experiencing in connection with obtaining records from the Brockton Court. The lay statement demonstrated that the Veteran continued believing that his personal knowledge of the warrant being issued and the U.S. Postal Service's physical delivery of the warrant to the Veteran were the necessary prerequisites for the warrant to be legally valid. The Veteran accompanied his May 2010 lay statement with a lay statement of his landlady who observed that the Veteran was an "excellent tenant" and his rent was $600 monthly. Later in May 2010, the VSO filed the Veteran's Appellant's Brief. At that, the VSO's actions as the Veteran's representative seemingly ceased, even though the Board's careful review of the record has failed to locate any document suggesting that the VSO had withdrawn its representation of the Veteran. Almost seven years passed by. In February 2017, the Veteran filed another lay statement pointing out that he had been present in the State of Massachusetts during the period when the RO deemed him a fugitive felon for VA purposes. The lay statement also indicated that, during this seven-year period, the Veteran's debt had been recouped in full, and therefore he was seeking remittance of the recouped funds. After that, another four years passed by. In August 2021, the Veteran had a videoconference Board hearing before the undersigned Veterans Law Judge. The Board notes, with concern, that the Veteran appeared at the hearing without being accompanied by his VSO representative. That said, since the Veteran's claims are granted in full in the instant Order, no due process concerns could be associated with the Veteran not being represented by the VSO during his Board hearing. During the hearing, the Veteran testified as to the financial hardship he had experienced due to DMC's incremental withholdings from his VA pension benefits. The Veteran also asserted that at the time when he was charged by the RO with the overpayment, he had been systemically homeless and experiencing an alcohol addiction. In addition, the Veteran testified quite extensively as to the efforts that he had made to control his alcohol addiction and end his systemic homelessness, as well as measures he had taken to improve his relationship with his sister, and to develop plans to further his education. However, while the issue of the Veteran's financial hardship experienced in connection with DMC's recoupment of his overpayment debt would be relevant to his waiver claim, given that the bulk of elements of the equitable waiver analysis turn on the Veteran's financial status, the Veteran's ability to control his alcohol addiction, his mended relationship with his sister, and his future plans to obtain education while commendable socially are inapposite to the issues before the Board. Moreover, the Veteran's testimony that "the warrant was for trespassing or something else[, b]ut I went back and straightened out the warrants and they were misdemeanors and they were dismissed[, and] I was found not guilty and it did not go to trial or anything like that," (emphasis supplied), caused the Board a pause. Not only the Veteran's testimony verified that in addition to his waiver claim the Veteran was still pursuing his challenges to the propriety of the creation of his overpayment (even though his May 2010 Substantive Appeal expressly limited his challenges solely to a waiver claim), but his testimony was also against the Veteran's own interests. Indeed, while it is true that the act of trespassing is a misdemeanor offense in Massachusetts, see Mass. G.L. 266 § 120, and the warrant at issue was for "destruction of property," a felony, his repeated references to multiple misdemeanor-based warrants indicated that the Veteran was habitually committing criminal offenses, albeit insufficient to trigger the status of a fugitive felon for VA purposes. In addition, the Veteran's testimony that a certain unspecified entity, be it a judge or a jury, "found [him] not guilty" could not mean that the warrant at issue was nullified. Indeed, as the Board has observed time and again, a verdict of not-guilty cannot nullify an underlying warrant; rather, only the fact that the warrant was recalled by the issuing court or found to be issued in an act of malicious prosecution by a court sitting in 42 U.S.C. § 1983 review could nullify a warrant. In sync, the fact that the Veteran did not go to trial is inapposite to the validity of the warrant: since a person might be convicted upon taking a guilty plea, or a plea of nolo contendere, or an Alford-Serrano plea, or have his/his parole or probation revoked upon having a mere administrative hearing, rather than a penal trial, etc. Moreover, the Veteran's testimony challenging the propriety of the creation of his overpayment was procedurally misplaced. This is so because, in overpayment matters, the right to a Board hearing extends only to waiver claims, while all forms of challenges to the propriety of the creation of an overpayment should be resolved on the evidence of record. 38 C.F.R. § 1.911(c)(2). That said, here, the Board can still reach the issue of the propriety of the creation of the Veteran's overpayment and consider his Board hearing testimony regardless of the limiting effect of his May 2010 Substantive Appeal. This is so because if a challenge to the creation of an overpayment is not raised by the claimant as a self-standing claim but, rather, is implied as part of his/her waiver claim, the Board is obligated to resolve such an embedded challenge first effectively treating it as if it were a self-standing challenge raised in addition to the claimant's waiver claim. Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991) ("when a veteran raises the validity of the debt as part of a waiver application, . . . it is arbitrary and capricious[,] and an abuse of discretion to adjudicate the waiver application without first deciding the veteran's challenge to the lawfulness of the debt asserted against him or her") (emphasis supplied). Given that the record demonstrates the Veteran's desire to challenge the propriety of the creation of his overpayment even after he had filed his May 10 limiting Substantive Appeal, the Board addresses this challenge before turning to his waiver claim. Moreover, regardless of the Veteran's testimony against his own interests, the record and the Veteran's testimony, if read in toto, show that the Veteran was subject to numerous warrants issued against him, but the sole warrant alleging a felonious offense was conclusively recalled by the Brockton Court. Therefore, the Board finds that the overpayment was improperly created because the Veteran was never in fugitive felon status for VA purposes. Accordingly, the Veteran's challenges to the creation of his overpayment are granted, and the overpayment is nullified, thus rendering him entitled to remittance of the $9,436.61 amount. The foregoing leaves the Board with the Veteran's claim for a waiver of the debt arising from the invalidated overpayment. Under 38 U.S.C. § 7104 and 38 C.F.R. § 20.101, the Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision that affects VA benefits to veterans. It follows that, under 38 U.S.C. § 7104, the Board may dismiss any portion of an appeal where the case or controversy ceased to exist. See also 38 U.S.C. § 511(a); Church of Scientology v. United States, 506 U.S. 9, 12 (1992); accord Armstrong v. VA, 2016 MSPB LEXIS 6372 (M.S.P.B., Oct. 27, 2016) (While an administrative Board is not a federal court, and an administrative agency with quasi-judicial functions has powers and limitations distinct from those of an Article III court, this is a distinction without a difference for the purposes of the mootness analysis). Here, the Board's grant to the Veteran's challenges to the propriety of the creation of his overpayment underlying the debt that had been recouped from him by DMC constitutes a greater award than the award the Veteran would have obtained had he been granted a waiver of this debt since, if an overpayment is deemed improperly created, no taxes are owed by the payee, while a grant of a waiver might have tax implications. Accordingly, the Veteran's claim for a waiver of his overpayment debt is moot. L. M. Barnard Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.