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Despite what military recruiters may have told them, a pair of 20-year armed forces veterans were not entitled to free medical care for life, the U.S. Court of Appeals for the Federal Circuit said on Nov. 18. Schism v. U.S., No. 99-1402. The ruling comes in a suit filed by a retired Vietnam veteran and prisoner of war who accused the federal government of breaking a promise it had provably made to enlisted men during World War II, and then later to recruits for the war in Korea. Rendered en banc, the ruling undoes a January 2001 three-judge panel decision that no law or regulation barred the recruiters from making the promises or prevented the federal government from keeping them. It restores a 1998 Florida federal court decision that those promises, conceded by the federal government to have been made, were not backed by any official congressional action and were, therefore, unenforceable. Although the U.S. Department of Justice had pressed for the full-court rehearing, a spokesman said the department had no official comment on the decision. Retired Marine Colonel George E. “Bud” Day, who was lead counsel for the plaintiffs, said he was “pretty astonished” by the reversal. He added that at oral argument last March, “the court literally ripped the U.S. attorney to shreds in front of 250 World War II and Korean War veterans.” Day filed the case in 1996 after the government announced that it could not afford to honor its promise to provide lifelong free medical care to veterans who had served in the armed forces for more than 20 years, as well as their dependents. In lieu of guaranteed free care, the defense department offered all veterans age 65 and older the opportunity to elect supplemental Medicare Part “B” coverage at a premium of $45 per month. Day had originally filed pro se, but he soon substituted a pair of World War II combat veterans as plaintiffs representing a would-be class. He estimated that the class could have encompassed 1.5 million veterans. The complaint was filed under the Little Tucker Act, which allows plaintiffs to file suits against the federal government worth up to $10,000 that are based upon an express or implied contract with the United States. Although legislative action this year officially made this class of veterans eligible for expanded insurance benefits, the six-year gap in coverage left the government facing a potential claim for more than $4.8 billion. Rejecting the claim, the court said, “We cannot readily imagine more sympathetic plaintiffs than the retired officers of the World War II and Korean War era involved in this case,” the court’s majority opinion said. But, it added, “Federal judges have a duty to uphold the constitution and the laws, even if that means making unpleasant or unpopular decisions.” Four of the 13 judges dissented from the ruling. In one of the two dissenting opinions, Chief Judge H. Robert Mayer said that to suggest the U.S. Congress was “oblivious, that it did not know military officials were promising medical care in accordance with its appropriations is pure sophistry. If it were otherwise, if Congress can appropriate billions for this aspect of national defense and not know how it is accounted for, then God save the Republic.” Amici briefs were filed by The Alliance of Retired Military and by the Disabled American Veterans. Minnesota lawyer John A. Dragseth, a former Federal Circuit clerk and now an associate in Fish & Richardson, co-authored the disabled veterans’ brief. He, too, was surprised by the ruling. “This seems like a case that should have gone the other way.” Based on his experience, he added, he had expected “a little bit more of an equitable result.”

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