Vets’ Medical Challenge Faces Tough Going

Veterans return from Afghanistan April 2011. (US Army)

It was not a good day for veterans in the 9th U.S. Circuit Court of Appeals.  An 11-judge panel was reconsidering a May decision that held veterans not only have a right to effective, timely mental health care but also to timely resolution of their service-related disability and death benefit claims.

But it became clear about 20 minutes into the hour-long hearing that a majority of the panel may tell the vets the courts have no jurisdiction over their claims of systemic problems, even if they have become so egregious they violate constitutional due process protections.

Instead, a majority of the judges appeared ready to tell the vets to go to Congress or go to the President for reforms, or appeal individual claims to the Federal Circuit Court of Appeals in Washington, DC.

Two veterans groups had asked trial Judge Sam Conti in San Francisco 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.  Conti dismissed the case.

Gordon Erspamer, lawyer for the veterans, argued that 86,000 veterans languish on a VA waiting list for assessment of their mental health needs, despite rules that say they must be assessed in 30 days. And there is no way to punish system-wide violations of those rules, he said.

“I have a tough time understanding how I can get involved to help you,” Judge N. Randy Smith told Erspamer.  “Why isn’t this an Executive Branch problem?”

Justice Department lawyer Charles Scarborough argued that the veterans are “seeking to force systemic reform and Congress has divested the courts of that authority.”

“So you’re not even arguing that you’re doing a good job?” asked a stoney-faced Judge Connie Callahan.

One of the few sympathetic ears seemed to come from Judge Susan P. Graber, who asked whether the courts could act if there was blatant discrimination based on gender or race.  “What if women’s claims were handled timely but men’s were not?” she asked.  Prompting Scarborough to suggest they might go to the Federal Circuit court with an individual claim.

“So my example is a wrong without a remedy?” Graber asked.

Later Chief Judge Alex Kozinski stepped in to rescue Scarborough by pointing out that an individual claim of sex or race discrimination could be raised as an individual claim “and serve as a proxy for the system as a whole.”

But how? asked Erspamer when he had a chance to respond.  “How would they prove it?  There is no discovery.  It is purely a paper record for claims.  In their entire history they have never taken up the systemic issue,” Erspamer began before Kozinski cut him off with a “time’s up” call.

The original lawsuit was brought by two non-profits groups, Veterans for Common Sense and Veterans United for Truth, but dismissed by Conti.   The three-judge panel, led by Judge Stephen Reinhardt, revived the lawsuit  saying the veterans were entitled to timely resolutions.

But Kozinski made it clear back in May he didn’t like the ruling saying the majority “hijacks the Department of Veterans Affairs mental health treatment and disability compensation programs and installs a distict judge as reluctant commandant-in-chief.”

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.  Kozinski, as chief judge, is automatically on 11-judge en banc rehearings.  The remaining 10 judges are drawn at random.  Reinhardt did not get on the panel.
Reinhardt’s opinion described that on 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 stated.

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

During the Dec. 13 arguments, the 9th Circuit courtroom had plenty of veterans attending, some in VFW hats with unit ensignia’s, others sporting orange “veterans for peace” T-shirts.

The court’s decision is not expected for several weeks.

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

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