Veterans’ organizations suffered two blows in the U.S. Supreme Court on Monday, when the justices denied review in lawsuits attempting to remedy extraordinary delays in the handling of benefit claims by the Department of Veterans Affairs.
In one case, Veterans for Common Sense v. Shinseki, two nonprofit organizations, Veterans for Common Sense and Veterans United for Truth, unsuccessfully had challenged systemic delays in the VA’s provision of mental health care and death and disability benefits.
The en banc U.S. Court of Appeals for the Ninth Circuit, reversing a panel ruling, said last May that providing the relief sought by the vet groups would require a district court “to overhaul the manner in which the VA provides mental health care and adjudicates claims for benefits.” The divided en banc court held that it lacked jurisdiction to provide that relief “because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.”
In the second case, Byron v. Shinseki, octogenarian Lady Louise Byron, seeking review of a Federal Circuit decision, had urged the justices to hold that the U.S. Court of Appeals for Veterans Claims (CAVC) should reverse a denial of benefits when the record is complete and supports the benefit claim. Byron, whose claim for benefits stemming from her late husband’s military service has been in the VA system for more than three decades, argued the veterans court was not following the judicial review law by ordering endless, unnecessary remands of claims. Those remands have been called by vet groups the “hamster wheel” of justice within the VA claims system.
The Veterans for Common Sense lawsuit, filed in 2007, drew national and congressional attention, particularly to the high rate of suicides among soldiers and veterans in recent wars—18 suicides per day. Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month, according to the lower court. The average time to pursue a claim that involves an appeal is 4.4 years.
Gordon Erspamer, senior counsel with Morrison & Foerster until his recent retirement, handled the case through the lower courts, while the firm’s Brian Matsui filed the petition for review. They worked pro bono.
In the petition, Matsui wrote, “The Court should grant review now because any delay is at the expense of our Nation’s veterans. Indeed, this case likely presents the only opportunity for this Court to intervene in time for the veterans of the Iraq and Afghanistan wars. Combat veterans are entitled to free health care from the VA for only 5 years after their service ends. If left unreviewed, the Ninth Circuit’s decision will condemn these ‘veterans to suffer intolerable delays inherent in the VA system.’”
Byron’s benefit claims had been reviewed at different levels of the VA system 10 times.
“Petitioner seeks review by this Court to determine whether the CAVC has the authority and responsibility to reverse a denial of benefits in the lower court when the record is complete and there is no bona fide issue for remand and thus agency discretion to exercise,” wrote her pro bono counsel, Edward Reines of Weil, Gotshal & Manges. “If granted, this petition has the potential to reduce massive judicial inefficiency and benefit thousands of deserving veterans whose claims have been needlessly delayed in a lengthy game of procedural ping-pong that has now been blessed by the Federal Circuit as the standard operating procedure.”
Although they did not win their lawsuit, Paul Sullivan of Veterans for Common Sense, said the suit resulted in “a lot of huge changes” within the VA. It forced the agency to set up suicide hotline, he said, which has received 700,000 calls in five years and saved 23,000 veterans’ lives. The VA budget was increased for more doctors, and veterans’ advocates in Washington were able to exclude the VA “from the nonsense of the fiscal cliff.” Those advocates, he added, also successfully fought for new mental health benefits and five years of free health care for all vets who go to a war zone.
“Recently the Supreme Court declared corporations are people and can give unlimited millions to candidates to run for office,” he said. “A small nonprofit, we tried to take to the Supreme Court a case where a suicidal veteran, if turned away by a VA doctor, should at least be able to go to court, and the Supreme Court said no. Clearly the Court has its priorities wrong. Vets should trump corporations every day all day.”
Byron’s counsel, Reines, also expressed disappointment with the justices’ denial of review in her case. “Lady Byron’s quest for the benefits—42 years and counting—she undoubtedly deserves drags on as the courts continue to turn their back. We are disappointed that the Supreme Court did not find the fundamental veterans issues at stake in our case worthy of review. With the Court’s shrinking caseload, perhaps veterans’ issues just do not make the cut. It is hard to think of a more compelling case.
“You would think the power of a federal appeals court would be better managed by the courts themselves rather than Congress. Apparently not,” he added. “For Lady Byron, this sadly means a return to the bowels of the VA.”
Marcia Coyle is the chief Washington correspondent for The National Law Journal, a Legal affiliate based in New York.