U.S. Federal Court To Hear Oral Argument To Overhaul VA Or Not

by Joseph G. Lariosa

CHICAGO (jGLi) – The United States Ninth Circuit in San Francisco, California will hear an oral argument in an en banc hearing on Dec. 13 at 11 a.m. to determine if it will let stand or set aside an opinion of its three-judge panel last May that issued a sweeping order, reorganizing the Department of Veterans Affairs (VA) for its failure to arrest the estimated 18 suicides per day among America’s 25 million veterans, who could no longer wait because of the delay of their medical treatment.

Saying, “we would have preferred Congress or the President to have remedied the VA’s egregious problems without our intervention when evidence of the Department’s harmful shortcomings and its failure to properly address the needs of our veterans (when this) first came to light years ago,” Circuit Judges Procter Hug, Jr. and Stephen Reinhardt, who penned the 104-page decision, overturned last May 10 the decision of U.S District Court Judge Samuel Conti of the Northern District of California in San Francisco, dismissing a class action suit filed by Veterans for Common Sense and Veterans for Truth (collectively, “Veterans”), seeking injunctive and declaratory relief to remedy the delays in (1) the provision of mental health care and (2) the adjudication of service-connected death and disability compensation claims by the VA.

The shocking order would reorganize United States government’s second largest department, after the United States Department of Defense. With a total 2009 budget of about $87.6 billion, VA employs nearly 280,000 people at hundreds of Veterans Affairs medical facilities, clinics, and benefits offices and is responsible for administering programs of veterans’ benefits for veterans, their families, and survivors.


The panel was asked to decide whether these delays violate veterans’ due process rights to receive the care and benefits they are guaranteed by statute for harms and injuries sustained while serving the country under the First and Fifth Amendments of the U.S. Constitution and the constitutionality of a federal statute – the VJRA (Veterans Judicial Review Act of 1988).

Judges Hug and Reinhardt, in a stinging rebuke, agree that “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. Alternatively, had the VA agreed with Veterans following oral argument to consider a practical resolution of the complex problems, the end result surely would have been more satisfactory for all involved. “We joined in our dissenting colleague’s suggestion that we defer submission of this case in order to permit the parties to explore mediation, and we regret that effort proved of no avail. We willingly acknowledge that, in theory, the political branches of our government are better positioned than are the courts to design the procedures necessary to save veterans’ lives and to fulfill our country’s obligation to care for those who have protected us. But that is only so if those governmental institutions are willing to do their job.”

Although the benefits system traces its roots back to 1636, VA was elevated into a Cabinet-level position in 1989. Its mission is “to fulfill President Lincoln’s promise ‘To care for him, who shall have borne the battle and for his widow and for his orphan’ by serving and honoring the men and women who are America’s veterans,” the opinion said.


The opinion mentioned about a veteran who committed suicide after calling the VA to report his suicidal thoughts but was told he would be over 25 places down on a waiting list for treatment. In another case, a former U.S. Marine who was at the Pentagon on September 11, 2001, and later served in Iraq, reported a delay of almost eight weeks before the VA would see him after “telling the VA repeatedly that I was suicidal” and having already been diagnosed with post-traumatic stress disorder (PTSD).” All told, over 84,000 veterans are on waiting lists for mental health care. The district court made no finding as to the number of veterans who were placed on waiting lists by administrators, as opposed to clinicians. Veterans argue that vast numbers of veterans are denied access to mental health care by administrators, and the VA offers no evidence to rebut this claim. What is clear is that veterans have no recourse when they are told that they cannot be scheduled sooner for a mental health appointment.

This absence of procedural safeguards is particularly alarming in view of the apparent ineffectiveness in the scheduling system, the opinion said.

Chief Judge Alex Kozinski, who departed from the ruling, said, “the majority dramatically oversteps its authority, tearing huge gaps in the congressional scheme for judicial review of VA actions. It overrules both Congress’s and the VA’s judgment on the amount of process due to veterans seeking benefits. And it rearranges the VA’s organizational chart by appointing a district judge to head the agency.”


The Journal Group Link International stumbled on the case when it was checking on the decision of a similar class action complaint of declaratory and injunctive relief under the U.S. Constitution filed by Filipino American veteran Romeo de Fernandez, et al. against the U.S. Department of Veterans Affairs and VA Sec. Erik K. Shinseki pending before U.S. Northern District Court Judge Saundra B. Armstrong in Oakland, California.

The government lawyers in the De Fernandez case led by Tony West notified Judge Armstrong of an order by Chief Judge Kozinski that “upon vote of a majority of nonrecused active judges, it is ordered that this case (Veterans for Common Sense and Veterans United for Truth v. Eric K. Shinseki, et al) be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.”

An en-banc hearing composed of 11 judges is rare. It is called by majority active circuit judges to hear or rehear a case in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. It takes several months after the hearing before a decision on the case is due.

The complaint was initially filed on July 23, 2007 before the U.S District Court of Northern California. Counsel for plaintiffs-appellants Veterans for Common Sense and Veterans United for Truth, Inc. are Gordon P. Erspamer (argued), Heather A. Moser, Ryan G. Hassanein, M. Natalie Naugle, and Stacey M. Sprenkel of Morrison & Foerster LLP, San Francisco, California; and Sidney M. Wolinsky, Ronald Elsberry, Katrina Kasey Corbit, and Jennifer Bezoza of Disability Rights Advocates, Berkeley, California while the defendants-appellees VA are represented by Michael F. Hertz, Acting Assistant Attorney General; Joseph P. Russoniello, United States Attorney; and William Kanter and Charles W. Scarborough (argued), Appellate Staff, Civil Division, Department of Justice.


The panel affirmed the “district court’s rulings with respect to Veterans’ various claims for specific forms of relief under the Administrative Procedure Act, including their claims for system-wide implementation of various VA mental health care initiatives and their claims for the alteration of disability compensation adjudication procedures in VA regional offices.

“We conclude, as did the district court, that the relevant provisions of the Administrative Procedure Act prevent us from granting Veterans the statutory relief that they seek. We reverse, however, the district court’s rulings on Veterans’s constitutional claims. We hold that the VA’s failure to provide adequate procedures for veterans facing prejudicial delays in the delivery of mental health care violates the Due Process Clause of the Fifth Amendment, and that the district court erred when it found otherwise. “We further hold that the district court erred in concluding that it lacked jurisdiction to review Veterans’s due process challenge to delays and procedural deficiencies in the compensation claims adjudication system, and that it erroneously denied Veterans the relief to which they are entitled under the Due Process Clause. We therefore affirm the district court in part, reverse in part, and remand for further proceedings.”  (lariosa_jos@sbcglobal.net)

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