judge david from the eastern district of texas he has generously agreed to supplement our panels today and tomorrow we appreciate his work both on the trial bench and assisting us t fifteen forty three from two thousand and nine and de santo vs office of personnel management appeal thirty forty nine from the current year our argument list will hear argument first and d waiver you can argue that he waived it the argument is whether he knowingly intelligently did so but does the constitution require simply an affirmation yes i waive it or does it require some educated decision where the notice off who included her phone number and then if you have any questions to write the officer call this phone number and didn't take advantage of that well i don't know if you get or not and he probably did not but i'm not sure that that would be enough just put an inquiry notice i mean if there is something obligation to function as if they were the private attorney hired by dell risk area i do and it i do in this particular case when there are i mean an adversarial situation which is quite anomalous and there are typically proclaim  it functions i do believe and and also have to look at it fifty nine for has been recently amended to allow attorneys to be paid to be compensated represent veterans after notice in most disagreement at this time he couldn't get an attorney  circumstance and so the government has every right to assume that he's made a choice not to appear perhaps to subject himself to criminal sanctions if he is nailed down on a fraud please proceed and the other aspect of it is it's my contention that the v a in this quasi criminal proceeding had an obligation to to get the witnesses thoroughfare witnesses to prove its case beyond a reasonable doubt callahan is that the the the right to hearing belongs to the claimant or in therapy employ along but that the government can exploit that right by by taking taken advantage of as an excused wasn't for the courts i just don't think it's presidential on any relevant point but you seem to be saying that the v a in your view had an obligation to discuss the  potential benefits but also the downside risks that seems like an impossible role for the v a to undertake it might be something that a counselor or lawyer or not could undertake but but i don't see how the v a would be in a position without a conflict of interest to be encouraging somebody to either have a live hearing or to elect not to have a lot of hearing by the way that they emphasize i didn't vet potential benefits or the potential risks will be a terrible situation to put to be in it that's their argument my response to it and she it into worse off if he appears live and had credibility with the government witnesses africa tour and the to reduce your assuming that he's going to benefit but it might well be that due process obligation to bring its witnesses to prove its case beyond a reasonable doubt that's my argument and the question is is should the veteran know that i weighed it it's a fact to be relieving the government of that obligation and it's a huge huge six thousand dollars covering misconduct in the period two thousand to two thousand work but in addition as of the time of the proceedings here under review any further benefit payments were also cut off with that right  the benefits that he was as i understand how the regulations work the benefits that he was receiving at the time were terminated although the regulations allowed at which time at the time of the final decision to on well actually i was still li i have to step back a second let me ask you this way if we were to affirm would that mean that his future flow of benefits would be terminated and if well if he would have the ninety six thousand dollar debt i don't know if this is the case that although the notice discussed the facts in considerable detail and write the adverse witnesses it was the fact that he was not given copies of the af davits and depositions of the first witness oh based upon the record i think the inference would be that he did receive copies of the affidavit because if you look at his response and its citations to particular affidavits it appears to anyone that appears to us at least that he did possess them but i'm not aware and there's nothing the record that indicated that the actual affidavit were attached to the notice that that's the court's question but it does again difference would be that he received and given that detailed descriptions contained in whereas in fact the government would paper the witnesses not the better if perhaps in a particular situation the government might but i think by and large them the witnesses were it was your argument i thought i thought it was a central argument in your brief that if he wanted to have a hearing he could have had a hearing if he wanted to cross examine the witnesses against him he could have had them subpoenaed and then cross examine them at a lie period but t notice makes it sound like well yeah you can get all that but only if you the veteran paid for that and in that sense i wonder if the notice is that misleading  this in this case there's been no suggestion on the record that this individual did not relax to go for the oral rather than the written path because of some kind of financial problems  deep which would appear he had no problem contacting witnesses that he would have otherwise called the hearing in obtained affidavit testimony from those same witnesses and submitted that you know and his behalf so it wasn't a question in this case  f did it doesn't appear to be in there's no suggestion the record there's a question of expense that put him off from the oral path seems to be just preferred to to on follow the written so to that extent even if the court were concerned  about some of the aspects of the notice that there would be a question of whether or not there's any harm in this case which is a factor that the court should consider important this court gamble noted that in fact even in a constitutional setting when the nature of the proceeding requires in every case a live hearing you know again what would your authority for how you would categorize this proceeding versus the characterization that mr well i'm not aware of any regulation that would or any rule that would preclude the operation is thirty eight c f r three point one zero three which i believe is that the general regulation dealing with hearings and things which applies to any that he could you can respond by requesting the hearing responded it's good by submitting a very detailed written response complete with numerous attachments including the affidavits of the very individuals he now suggests that he wanted to talk to  what's in the record that would indicate he was put on notice that perhaps his compensation would be terminated and he would have to hide the fact well the i think the opposing notice talks about you know what happened to him and that he was going to lose his benefits she judgment shall reference was to this so called two thousand and five letter which was issued later on let me just bring it up here but you know if the question is was he put on notice the time of the proposed action that he was in danger of losing his benefits yes he was they did i don't think they monetize them at that time well that would be all sort of notified they might have to  different island might have been awfully expensive for him to take advantage of the hearing and and have to pay to bring favorable witnesses with him but of course quite a lot i think as i understand it and i confess now it doesn't seem to be in the notice at the v a folks in the philippines i looked at a map and actually it looks like it's quite close in this case looks like it's a satellite city or even a sub or you know one indication was that as the crow flies it was like four miles and the road it was fifteen kilometers or something like that but it but the notice it was they notice they used for everybody it would apply to somebody who was a thousand miles away and that would be a concern  i think the question is larger than at the camp of donald affidavits were they answered that question which is did they serve the military where they qualified under various being lost to even receive these benefits i thought if you were in the filipino army which w so i did it it seems to me it has many of the trappings of course is a big difference if you get convicted of a crime or go to jail if you lose a corporate your case you lose money but you know you're not at risk of going to jail yeah but i mean i the logical that there might be different levels of paper true except that he lost so much money on this and so many of the veterans do what made it almost say that i don't know how values i guess but i would say it's it's it's it's quasi criminal well he may be judgment proof as to the ninety six thousand it's true that if his benefits are cut off as of some date that's a stream of income he won't seems to me all the intent in drafting a statute that beyond reasonable doubt seem to me it has so much so much of what we consider a criminal action that someone's writing on it with all of the factors i talked about it seems to me that there's needs to be more advice and i'm not saying i think you might have misstated my bit but you know your opinion as a lawyer or my opinion as a lawyer didn't seem very important if congress or the constitution command it then it has to happen but it you or i or any other individual think that as a matter of policy it's a matter of preference as a matter of founded grecian it should be treated like a criminal matter that's quite different and that doesn't have any legal consequences i think that would be something for the secretary to consider when you shoot the regs that govern these procedures i'm not sure if that's the way  look it how the government proceeding the them out there what is subject we we have all the authority that you cited to try to provide a regal underpinning for your argument that this has to be viewed as something close to a criminal case we have that we can address through because i'm not sure why it seems to me that it is for the courts to determine whether is a quasi criminal i mean i'm not sure you need congress to characterize it it seems to me that it's very much a question for the legal question for this court