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Ninth Circuit Finds that Delays in Veterans Administration’s Disability Claims Process Are Unconstitutional (June 15).

The Ninth U.S. Circuit Court of Appeals last month held the delays in the U.S. Department of Veterans Affairs disability claims process violated the constitutional due process rights of veterans. Veterans for Common Sense v. Shinseki, No. 08-16728, 2011 WL 1770944 (9th Cir. May 10, 2011).

Writing for the majority, Circuit Judge Stephen Reinhardt reversed a San Francisco U.S. District Court decision in the case, then remanded it to the lower court to supervise the VA’s new procedures.

The 2-1 judgment stemmed from an appeal filed by two nonprofit veteran’s organizations of a 2008 decision by the Northern District of California. Veterans for Common Sense v. Peake, No. C-07-3758 SC (N.D. Calif. June 25, 2008) (available here).

The plaintiff veterans groups sought injunctive and declaratory relief for department-wide failures within the VA in processing disability claims’ appeals.
The main target was backlogs at the Board of Veterans Appeals, the culmination of a process that can leave cases in limbo for years.

The Ninth Circuit made several specific holdings, including that the veterans groups, Veterans for Common Sense, of Washington, D.C., and Veterans United for Truth, in Santa Clara, Calif., had standing to bring the action; sovereign immunity could not protect the VA from the claims; the court could not force the VA to implement a specific mental health strategic plan; and the delays in adjudicating veterans disability benefits claims and in providing veterans with mental health services each represented a violation of veterans’ constitutional due process rights under the Fifth Amendment.

Chief Circuit Judge Alex Kozinski dissented with a separation-of-powers argument.  He contended that he did not believe that the judiciary had the authority to compel an executive agency to alter its process. While he recognized that a problem existed within the VA’s processes, Kozinski argued that the language enumerating the VA’s powers at 38 U.S.C. §§ 502, 511 precluded the court’s involvement.  

Despite this disagreement, both the majority and dissent had recommended that the parties mediate to resolve this issue.  The mediation didn’t work, but the majority opinion urges the parties to continue discussions.

Similarly, the court encouraged the VA to develop a conciliatory approach in dealing with the claims themselves.  The decision analyzes the U.S. Supreme Court’s interests in maintaining an informal and non-adversarial process for administering veteran’s benefits, via Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985).

At press time, it was unclear whether the VA or the district court on remand would follow the Ninth Circuit’s advice to increase the use of conflict resolution practices to deal with this problem.  Hearings had begun again last month in the San Francisco district court where the case had been tried.  More are expected soon.
The government had not decided whether to file a cert petition in the case to the U.S. Supreme Court or to ask for a rehearing in front of the full Ninth Circuit, according to Charles Miller, a spokesman for the VA’s civil division in Washington.
A full report on this case will appear in the July/August Alternatives, available on July 8 here, and to CPR members for free here.

--Peter Siemons, CPR Intern