Full 9th Circuit Pulls Plug on Veterans Affairs Overhaul

     (CN) – It is up to Congress, the president and other courts to reform the Veterans Administration’s heavily criticized handling of increasingly common mental health care requests, a full panel of the 9th Circuit ruled Monday.
     The federal appeals court in San Francisco said it lacks jurisdiction to order an overhaul of the VA’s mental health care system, which is overburdened by claims from troubled soldiers returning from a decade of war in Afghanistan and Iraq.
     The ruling by an 11-judge, en banc panel could effectively end a class action brought by the advocacy groups Veterans for Common Sense (VCS) and Veterans United For Truth. The groups claimed in their 2007 lawsuit that delays in mental health care too often result in the suicide of the soldier seeking help, amounting to a violation of service members’ rights to due process.
     “VCS’s complaint sounds a plaintive cry for help, but it has been misdirected to us,” Judge Jay Bybee wrote for the 10-member majority. “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it.”
     Quoting Abraham Lincoln’s second inaugural address, Bybee added that “Congress and the president are in far better position ‘to care for him who shall have borne the battle, and for his widow and his orphan.'”
     Moreover, requests for judicial review related to veterans’ benefits belong in the U.S. Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit, the panel found.
     Gordon Erspamer, a Morrison & Foerster attorney for the veterans groups told Courthouse News that he planned to take the case to the U.S. Supreme Court.
     “We believe that this decision is fundamentally wrong,” Erspamer said in a phone interview. “If it were correct, the doors of our courthouses are closed to veterans, even on constitutional claims.”
     The U.S Court of Appeals for Veterans Claims has the power only to review individual claims and cannot address systemic problems in the VA, Erspamer said.
     “Rights are meaningless if you have no way to enforce them,” Erspamer said. “This treats veterans as second class citizens; everyone else enjoys the right to file constitutional claim in the federal courts.”
     The en banc court ruled that most of the veterans’ claims failed for lack of jurisdiction, and that claims that did have jurisdiction failed because the sought-after relief “would transform the adjudication of veterans’ benefits into a contentious, adversarial system – a system that Congress has actively legislated to preclude.”
     “The Due Process Clause does not demand such a system,” Bybee wrote.
     Chief Judge Alex Kozinski, a member of the en banc panel Monday, argued as much in a dissent when the case was heard by a three-member panel last year.
     That 2011 majority had said that a California federal judge had improperly dismissed the groups’ constitutional claims. It found that the courts could force the VA to act because “neither Congress nor the executive has corrected the behavior that yields these constitutional violations.”
     Judge Mary Schroeder alone picked up that argument Monday. She argued that a status quo is unsustainable, regardless of jurisdictional arguments or congressional intent.
     “The majority thus leaves millions of veterans – present, past, and future – without any available redress for claims that they face years of delay in having their rights to hard-earned benefits determined,” she wrote. “No one could think this is just or what Congress intended.”
     The groups say up to 18 veterans commit suicide every day, many of them while awaiting a health care referral that can take months. Some 1,467 veterans died while their appeals were pending in just six months from October 2007 to April 2008.
     Since the trial, the VA’s backlogs have increased by 30 to 40 percent, with patients are “waiting months or even years for appointments,” Erspamer, their lawyer, said.
     “When you are suicidal, having to wait 120 days for help could be the last nail in the coffin,” Erspamer told Courthouse News. “It’s a tragic situation.”
     A review of veterans’ access to mental health care by the Office of the Inspector General, published in late April, found numerous problems with the Veterans Health Administration’s handling of first-time claims for such care.
     “VHA does not have a reliable and accurate method of determining whether they are providing patients timely access to mental health care services,” the report states. “VHA did not provide first-time patients with timely mental health evaluations and existing patients often waited more than 14 days past their desired date of care for their treatment appointment. As a result, performance measures used to report patient’s access to mental health care do not depict the true picture of a patient’s waiting time to see a mental health provider.”
     A spokesman for the U.S. Department of Justice’s Civil Division declined to comment.

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