Veracity Is An Important Element of A Case

By on March 20, 2006 in Current Events with 0 Comments

A recent federal circuit court decision shows the consequences of trying to support a federal claim with documentation that has a questionable pedigree.

In Hendrickson v. Department of Veterans Affairs (U.S.C.A.F.C. No. 05-3262 (non precedent), 3/13/06), a former Veterans Service Representative was unsuccessful in convincing the appeals court to overturn a decision of the Merit Systems Protection Board (Docket No. NY-0752-04-0054-I-1) that upheld his removal from the Department.

Apparently Mr. Hendrickson filed his own claim for service-connected injury benefits while he was employed at VA. He submitted a VA Form 9 seeking retroactive benefits and an increase in his compensation level.

To support his claim, he included two medical statements supposedly written and signed by Dr. Boaz Rabin. At the hearing on his claim, the presiding official asked some searching questions about these two medical statements. They were both unsigned and were “not on a preprinted form, letterhead, or memorandum.”

Mr. Hendrickson testified that he had obtained the two statements from Dr. Rabin: “I presented evidence to him, I requested that he provide an opinion, and he subsequently provided the opinion.” He then offered to have Dr. Rabin sign the two statements. (Opinion p. 2)

Dr. Rabin refused to sign the statements, noted they were not in the usual format, and accused Mr. Hendrickson of writing them himself.  Mr. Hendrickson tried to withdraw the statements from his claim. (p. 3) At that point the IG investigated.

Mr. Hendrickson told them he really was not sure where the statements came from, he found them among paperwork at his home, he “might have received the statements from his service organization representative.” (p. 3)

The agency was not very impressed with his explanation since they removed him from his position, citing him for presenting false documents to support a claim, giving false testimony under oath, trying to deceive a VA official into signing false documents, and making false statements in connection with an investigation.

Mr. Hendrickson appealed to the MSPB, but the AJ sustained the first three charges and upheld his removal. So, Mr. Hendrickson took his case to court where he fared no better.

Noting that the agency’s burden is to show that Mr. Hendrickson knowingly submitted wrong information and that he intended to defraud the agency, the court concluded that this burden had been met.

The court relied heavily on the AJ’s findings that Mr. Hendrickson kept changing his position on the origin of the documents and never came up with a plausible explanation as to why the statements were untyped and unsigned, which added up to strong circumstantial evidence to show that he intended to defraud the agency. One of his many explanations—that the service organization representative had placed them in Mr. Hendrickson’s private papers at home—just did not ring true with the Administrative Judge or the court. (p. 5)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.