In the wake of the May decision in Veterans for Common Sense v. Shinseki
, No. 08-16728 (9th Cir. May 10, 2011), which blasted the U.S. Department of Veterans Affairs for failing to provide servicemen and -women with timely adjudication of their disability claims, the government has petitioned for a rehearing en banc in front of the full Ninth U.S. Circuit Court of Appeals.
A 2-1 panel had remanded the case to a San Francisco federal district court to oversee immediately new VA measures that would ease a backlog in disability claims appeals that now stretches for more than four years.
The U.S. Justice Department, which is handling the case for the VA, says that the Ninth Circuit’s order is an invalid intrusion by the judiciary into executive-branch processes.
The case highlights the difficulties veterans have in adjudicating their disputes over their disability benefits—an administrative appeals process that occurs well after initial determinations have been made.
The Board of Veterans Appeals has been deluged with claims in the wake of long-running wars in Iraq and Afghanistan. Claims and delays have been increasing for a decade, and the VA has continually said it was working to ease the situation.
U.S. Secretary for Veterans Affairs Eric Shinseki touched on the overall claims processing issues just last week at three stops in Montana, and the department posted this July 8 Helena (Mont.) Air.com/Independent Record article
on the events at the VA's website.
The decision was the subject of this CPR web article
last month. The new July/August Alternatives
(subscription only) expands on the Veterans for Common Sense
decision, and focuses on, among other things, the majority and the dissent’s recognition of a separation-of-powers issue.
This Constitutional concern was the basis for the government’s petition for a rehearing, which states that the Ninth Circuit’s decision “ignored basic limits on judicial authority to compel systemic reform of agency programs.”
The rehearing petition was filed just before the long holiday weekend on July 1. The Ninth Circuit ordered the plaintiffs, two veterans organizations, to respond by July 26.
Ron Elsberry, staff attorney at Disability Rights Advocates in Berkeley, Calif., which represents the veterans’ advocacy groups, the Veterans for Common Sense and Veterans United for Truth Inc., notes in an E-mail that if the court grant the VA’s rehearing petition, “the original appellate decision . . . will be of no force or effect, and an 11-judge panel will rehear the appeal and issue a new opinion.”
--Peter Siemons, CPR Intern