Appeals Court Ruling Allows Judicial Oversight of VA Programs, Raises Separation of Powers Issues with President, Congress
San Francisco – In a case that has raised questions about the appropriate role of the three branches of the U.S. government, the 9th U.S. Circuit Court of Appeals ruled last month that veterans may look to the courts to seek relief from their claims about VA’s failure to provide adequate or timely care to veterans in need.
The ruling from the San Francisco court in Veterans for Common Sense vs. Eric K. Shinseki could result in the judiciary’s forcing VA to make changes in order to correct deficiencies in its system, even though that role usually falls to the executive and legislative branches of government.
“We do not reach this answer lightly,” Judge Stephen Reinhardt wrote in the majority opinion. “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 first came to light years ago.”
The ruling stems from a 2008 court case filed in federal court by the Veterans for Common Sense and Veterans United for Truth. In that case, representatives of the two veterans service organizations (VSOs) argued that VA was acting too slowly to improve its mental health care system, that veterans were waiting unacceptably long times for benefits adjudication and that, as a result, veterans needing care were not receiving it.
The court majority expressed strong agreement with those claims in sometimes scathing comments. “On an average day, eighteen veterans of our nation’s armed forces take their own lives,” Reinhardt wrote. “Of those, roughly one quarter are enrolled with the Department of Veterans Affairs health care system. Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month. Although the VA is obligated to provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder (“PTSD”) are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care.”
The majority opinion pointed out that it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits, and that waits have increased in recent years with injured troops returning from Iraq and Afghanistan.
The 9th U.S. Circuit Court of Appeals ruling overturns a 2008 decision by U.S. District Court Judge Samuel Conti of the Northern District of California. Conti had found that that there was not a system-wide failure to provide care and stressed the limits of the judiciary branch in the veterans benefits process.
The VSOs appealed that finding, and a three-judge panel of appeals court, which affirmed Conti’s ruling that the court cannot grant veterans statutory relief but reversed the decision that the court lacked jurisdiction to review veterans’ claims of unnecessary delays.
Back to District Court
The ruling places the case back in district court, with Conti expected to issue an order requiring VA to provide timely mental health care and benefits adjudication if VA does not come forward with a plan first.
Chief Judge Alex Kozinski provided the dissenting opinion for the appeals court. “The majority hijacks the Department of Veterans Affairs mental health treatment and disability compensation programs and installs a district judge as reluctant commander-in-chief,” Kozinski wrote. “Much as the VA’s failure to meet the needs of veterans with PTSD might shock and outrage us, we may not step in and boss it around.”
In response to their court victory, Veterans for Common Sense released a statement saying, “Veterans had our day in court, we won, and now we urge VA to move forward so no veteran is delayed or denied healthcare or disability benefits.”
Legion Offers Help
The American Legion concurred and went so far as to offer assistance to VA in an effort to comply with whatever order the District Court sets forth. “We want it known that we are already working with the overburdened VA to alleviate this problem and stand ready to lend any additional assistance we can in advance of court-ordered evidentiary hearings and subsequent actions,” said Peter Gaytan, executive director of the American Legion.
“Rather than appeal [the court ruling] or drag the legal case out further, VA should be willing to sit down with the American Legion and other advocates to resolve this issue,” Gaytan said. “The blame doesn’t rest with VA, Congress, or the veterans. It is the process that is broken. That is what needs to be addressed.”
There has been no word yet as to whether or when the federal government will appeal the ruling in a process that could lead to a decision from the U.S. Supreme Court.
Although they said they could not comment on the ruling, VA officials stressed how far they have come in terms of providing mental health care in the last few years. VA recently hired 3,500 more mental health professionals, bringing the total to 21,000 throughout the system. VA has a goal of fully evaluating veterans who are not in crisis and seeking mental health care within 14 days, and currently has a 95% success rate. VA seeks to access all veterans who are in crisis within 24 hours, according to a spokesman.
At a press briefing following the ruling, White House Press Secretary Jay Carney said, “The Veterans Administration and the Justice Department are taking a very hard look at that ruling and will work closely to address any of the issues raised by the court.”
In the meantime, the House Veterans Affairs Committee has scheduled a hearing this month in response to the ruling to look at the state of VA’s mental health care. “While we question the court’s legal basis for the ruling, any loss of life because of delays in treatment is a tragedy and must be investigated,” said Rep. Jeff Miller (R-FL) committee chairman.