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.”

Four-Year Waits

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.

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  1. William Heino Sr. says:

    Something the U.S. Supreme Court will not intervene in, or fight over.

    State court violation Separation of Powers DISABLED VETERANS

    State court violations of veterans’ VA disability compensation in disregard of State law, as well the Constitution of the United States have been forwarded (6/23/14), to all nine Justices of the United States Supreme Court, who in 2012 denied a petition on this issue by disabled Air Force veteran Peter Barclay. Justices now have stored in their court clerk’s file, my questions of law. Public Law 95-30
    “..there is no statutory prohibition against garnishment of military retired pay. ..a veteran’s disability compensation can be garnished in order to pay… ” However, there is prohibition that I find concerning these violations. Namely, “Separation of powers, Due Process, The Commerce Clause, Supremacy Clause,” as well, various veterans’ laws, the property protections of veterans benefits. The point of this mailing? This is now not something the Justices, and as well, the United States Senate and House Committee on Veterans’ Affairs now have not been made aware of. What they do with this information, if anything, will tell you a great deal. The parties have been advised of the following.

    In State court cases involving divorce, our disabled veteran’s concerns are over rulings violating both state and federal law. Decades of continuing costly litigation, incurred in pursuing 14th Amendment property rights of veterans VA disability compensation being awarded to third parties in violation of federal law 38 USC 5301, 10 U.S.C. § 1408. This unlawful activity continues in all but a few state courts that do recognize it‘s federal exempt status. Disabled veterans need to know if it’s true that the “… essential purpose of the due process clause is to prevent the government from acting arbitrarily.”

    Divorce is, and can be complicated process. However, keeping in mind, that in each case during the court’s initial property distribution rulings of alimony/support, before any conceivable consideration, in determining VA disability compensation as an award of alimony/support, first and foremost, the court’s duty to the veteran, enforcement of the protections secured by the Constitution. “State sovereignty is not a proper basis on which to rest jurisdiction. Instead the focus is on whether the defendant’s due process rights are infringed by the court’s assertion of jurisdiction.” Civil Procedure 4th Ed. West group.

    “It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

    Oregon resident, Peter James Barclay, a disabled Air Force veteran, May 2 2012, filed with the United States Supreme Court a Petition for a writ of certiorari.

    I. “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.”

    II. “This Court Should Grant Review to Resolve the States’ Various Interpretations and Applications of Federal Law Governing Veterans’ Disability Benefits and State Communal and Equitable Property Laws in Favor of One Binding Precedent.”

    On Oct 1 2012 Petition was DENIED.

    This decision fell on all disabled veterans when Peter Barclay was denied his Constitutional rights by Oregon’s State and Supreme court and refusal of the United States Supreme Court to consider his petition. All the while interestingly, permanent alimony reform continues, and has been proposed in Oregon and, as well, legislated in several states, all without one thought of the disabled veteran.

    I take that back. Yes, one State did think about the disabled veteran. In 1983, “..the Texas Supreme Court held that …Veterans Administration disability benefits …with the clear intent of Congress that these benefits be solely for the use of the disabled veteran.” And as so, legislated and made part of Texas law. Although alimony reform had been on the legislative agenda, they turned their thoughts once again to the disabled veteran. The Texas legislature in 2013 amended the law. Section 154.062(b), Family Code. Sec. 8.055. AMOUNT OF MAINTENANCE. “(a-1) For purposes of this chapter, gross income:
    (5) all other income actually being received, including… United States Department of Veterans Affairs disability benefits ….”

    The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. If, and when the question is a disabled veteran’s VA disability compensation property rights, it’s time that disabled veterans voices be heard in a matter that has long concerned them. State court judges continue to ignore the disabled veteran, and the law, i.e., 38 USC 5301, 10 USC 1408. “Separation of powers” doctrine is mandated to end this attempt by the state court to manipulate, overlook, and circumvent the law, and manage to stick it to the disabled veteran.

    It is said that no person can be deprived of life, liberty, or property, without due process of law. Forgotten long ago are the property rights of the disabled veterans. Why? It is clear the court’s have no legal right to, exercise, determine, or consider in any equitable calculation thereof, to divide federal VA disability benefits, in order to further enforce judgment arbitrarily in disregard of property rights. The “separation of powers” doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, his or her VA disability compensation, further requires subject matter jurisdiction, which address the court’s constitutional or statutory power to entertain a particular controversy. State court’s have the sworn duty and responsibility to enforce federal law. The court’s continued attempt to override VA administered rehabilitative medical services determinations, of disability compensation is not within the courts purview, legal right or jurisdiction to invade.

    Disabled veteran’s, and the “separation of powers” doctrine, both overlooked, ignored, for years, by most state court judges. Policy making outside their jurisdiction of constitutional boundaries in re-evaluating and considering long held established VA protocols, of a disabled veteran‘s VA disability compensation for purposes other than rehabilitation and health of the veteran. Substituting their judgment for the judgment of VA doctors and medical professionals. Violating the property rights of a disabled veteran’s earned VA disability compensation “..once they are delivered to the veteran..,” the blatant disregard of 38 USC 5301, “and shall not be liable to ..…or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.“ and the 14th Amendment, to further degrade property rights of the disabled veteran, runs afoul of the “separation of powers” doctrine. Injurious, and an abuse of power to allow what is happening, was this the intent of Congress?

    A disabled veteran’s plea to the judge, “I have a very severe serious back injury, I do need all of my VA disability compensation.” The judge will, of course reply, “Are you a doctor?” The practice of medicine is a privilege and a calling, and that it combines both art and science. And yet, in these non-life threatening health issues, acting as a provider of health care, state court judges independently take on the serious role of playing doctor, prescribe without medical license or knowledge VA medical compensation issues. A practice forbidden, providing penalties by law, and border on medical negligence in maintaining it’s own state health practice standards.

    Despite a ruling by the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, in refusing to exceed their jurisdiction over service-related disability compensation, state courts judges, yes… purposely overlook and violate this canon of law.

    A State’s navigable streams are regulated as commerce throughout it’s travel, to protect against pollution, and it’s effect to protect it’s health all along it’s travels. This is no different from a veterans VA disability compensation benefit, navigating it’s way across many states, and just as well recognized as commerce, regulated. State courts failing the constitutional standards for establishing a state priority over the Commerce Clause, Article 1, Section 8, have shown no State interest to protect the health and well being, or the property interests of a disabled veteran.

    Realizing laws protecting VA disability compensation as exempt, state courts, therefore are unable, in any legal standing, to secure garnishment of veteran’s VA disability compensation. The court not satisfied, in a final move, will now consider, from any source, an equitable calculation of veteran’s resources, to include…. the very same disability compensation the court has acknowledged as exempt in determining court awarded support. Suggesting the use of a veteran’s disability compensation, or go to jail! As has happened. The mere mention, innuendo, or thought of VA disability compensation to satisfy indemnity obligations as a equitable consideration in any form, thought or calculation of VA disability compensation, suggests interference, in matters identified as exempt, are beyond the State courts jurisdiction, under “separation of powers” doctrine. The court has the responsibility to recognize “property” as a “due process’ right and the states obligation to uphold the State Constitution’s “separation of powers” doctrine.

    A state court judge not wanting to violate federal law realizing the exempt status of VA disability compensation, so orders the veteran, that support payments… shall be made from his or her VA disability compensation. In many instances the only monies available, asking (coerced) the veteran to break federal law 38 USC 5301, one that the court will refused to violate. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. and shall not be liable to ..levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

    To illustrate, an ultimatum of disabled veterans’ experiences. As California Vietnam disabled veteran explained to me, “So the court is playing the ‘contempt of court’ game…I am unfortunately too afraid to go to jail for any reason so I resentfully and reluctantly pay the balance.” (Piner v Piner Calif.)

    The Supremacy Clause of the Constitution… “The laws of the United States… shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding. This means of course, that any federal law—even a regulation of a federal agency—trumps any conflicting state law.”

    The federal agency’s Veterans Administration Secretary knowing of these concerns remains oblivious to what is their responsibility of care to veterans is, and remains unconcerned as to exactly what their administrative duty is to protect VA disability benefits from those who freely encroach on those constitutional responsibilities that clearly belong to the Veterans Administration. I find no duty of the Secretary to surrender control of VA disability benefits so freely to the States. The issue of disabled veterans right to property is about the law, and not setting a precedent.

    As a veterans advocate, and a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view.

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