Appeals Court to Reconsider Vets’ Health Care

Veterans return from Afghanistan April 2011. (US Army)

Veterans will have to wait a little longer to learn whether they have a constitutional right to effective mental health care.  A majority of the 25 judges on the 9th U.S. Circuit court of Appeals voted to reconsider a May decision by a three-judge panel extending the constitutional protection to vets. 

Chief Judge Alex Kozinski made clear back in May he didn’t like the ruling and wanted it reconsidered.  The original panel opinion by Judge Stephen Reinhardt held that veterans not only had the right to effective mental health care but also had a right to timely resolution of their service-related disability and death benefit claims.

At the time Kozinski said the majority “hijacks the Department of Veterans Affairs mental health treatment and disability compensation programs and installs a district judge as reluctant commandant-in-chief.”

The original lawsuit by two non-profits groups, Veterans for Common Sense and Veterans United for Truth, was dismissed by U.S. District Judge Sam Conti in San Francisco.  The Reinhardt-led panel revived the lawsuit but Wednesday’s order puts its fate back in limbo.

The veterans groups had asked Conti to order the VA to remedy delays in providing mental health care to veterans returning from Iraq and Afghanistan.  The veterans groups sued to force the VA to improve conditions.  They maintained that the lengthy delays violated veterans’ due process rights to receive the care and benefits guaranteed by law.

Kozinski and Reinhardt are often at philosophical odds on interpretation of the law, with Kozinski in the court’s conservative wing and Reinhardt at the head of the liberal side of the court.

Reinhardt, joined by Judge Procter Hug, presented some pretty powerful facts in support of resurrecting the case.  In an average day 18 veterans commit suicide.  Roughly one quarter of them were involved in the VA health care system before they took their lives.  Among veterans enrolled in the VA system, another 1,000 attempt suicide each month.

A significant number of vets coming home from war suffer from psychological problems and Post Traumatic Stress Syndrome, but it takes nearly four years, on average, for a veteran to resolve claims for benefits.  And that has only gotten worse in recent years with vets from Iraq and Afghanistan overwhelming the VA system, Reinhardt states.

He put the blame at the feet of Congress.  “Had Congress taken the requisite action and rendered this case unnecessary even while it was pending before us, we would have been happy to terminate the proceedings and enter an order of dismissal,” he wrote.

The opinion held that the Constitution affirms the right of people to be “free from unjustified governmental deprivation of property – including the health care and benefits that out laws guarantee veterans.”

“The VA’s unchecked incompetence has gone on long enough,” he wrote.

But the order for rehearing en banc, means an 11-judge panel will be selected to rehear the case sometime next year.

Case: Veterans for Common Sense v. Shinseki, No. 08-16728

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