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Analyzing the Petition: Why the Government Wants to Rehear the Veterans’ Appeals Case (July 18).

The U.S. Justice Department’s argument for an en banc rehearing in Veterans for Common Sense v. Shinseki, No. 08-16728 (9th Cir. May 10, 2011), rests on a separation-of-powers argument.

See the full details on the case here.  The petition, filed on July 1, quotes the dissent by Chief Judge Alex Kozinski in the 2-1 Ninth U.S. Circuit Court of Appeals decision by noting that the decision “dramatically oversteps its authority.”

The request for a rehearing in front of the full Ninth Circuit is presented through four specific legal contentions.

The first argument is that the majority Veterans for Common Sense opinion, by Circuit Judge Stephen Reinhardt, incorrectly interpreted the Administrative Procedure Act to allow constitutional claims seeking injunctive relief to be brought against the government without its consent.

The Justice Department, which represents the U.S. Department of Veterans Administration in the case, argues that the waiver of sovereign immunity in APA Sec. 702 against the VA does not extend to due process claims seeking a broad reform of agency programs. Therefore, the VA and its claims processes should be protected from such a suit.

The petition also argues that the plaintiff veterans organizations’ attempted to circumvent limits on judicial review of similar APA claims by labeling their contention as a due process claim.

The government states that “[n]o distinction can properly be drawn between ‘unreasonable delay’ claims under the APA and those under the Constitution because the APA was enacted to provide a uniform vehicle for courts to review all types of challenges to agency action, including constitutional claims.” (Emphasis in the brief; citation omitted.)

Therefore, the petition asserts, the APA would prevent the judiciary from compelling agency action simply based on a claim of “unreasonable delay,” regardless of how it is packaged.

Second, the government argues that despite the Ninth Circuit’s decision to the contrary, the Veterans Judicial Review Act denies the court jurisdiction to hear the plaintiff’s claim.

The VJRA, the Justice Department says, prevents courts from reviewing individual benefits decisions made by the VA (38 U.S.C. 511), as well as VA rules and regulations (38 U.S.C. 502). The government contends that the plaintiff’s claims of systematic delays are barred from judicial review by Sec. 502 because they amount to a review of the VA regulations that either permit or require the conduct that caused such delays.

Also, the government disagrees with the Veterans for Common Sense majority position that the Section 511 limits do not apply to the plaintiff’s claims because they are not challenges to individual decisions but rather to systematic failures.

The government contends that “the systemic nature of plaintiffs’ claims necessarily rests on an aggregation of individual claims” by calling into question “each and every decision by the VA that may have any impact on timing.”

The government’s third argument states that the plaintiffs did not have a legal right to initiate a due process claim based on “average” delays, and the Ninth Circuit erred in allowing them to do so. The government equated the plaintiff’s claims to those made in Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654 (D.C. Cir. 2010), where it was determined that the plaintiffs lacked standing to bring suit because they based their claims on average delays, and denied individual members relief in the suit.

The Veterans of Am. court held that there was insufficient evidence that the VA’s conduct caused the plaintiff’s any specific injury--a requirement of legal standing.

The government argues in the Ninth Circuit rehearing petition that despite the Reinhardt opinion’s attempt to distinguish Veterans of Am. by stating that the plaintiffs here “complain of a variety of injuries actually being experienced”—rather than being injured by the delays--the cases were similarly positioned.

Because the two veterans organizations in Veterans for Common Sense similarly disavow relief to individuals, and use average delays as evidence of systemic delays, standing should be denied, the petition says.

In its fourth contention, the government argues that the Ninth Circuit incorrectly ruled that the “average delays” constitute a due process violation. The Justice Department petition asserts that the Veterans for Common Sense majority failed to properly apply the test of a due process violation articulated in Mathews v. Eldridge, 424 U.S. 319 (1976).

As the petition details, this test requires the assessment of “the probable value, if any, of additional or substitute safeguards,” which the government claims was not completed but instead left to be accomplished by the district court on remand.

The government also contends that the Ninth Circuit majority did not properly consider the VA’s current procedural safeguards. By failing to do so, the decision did not sufficiently show “that current procedures create an extraordinarily strong showing of probability of error,” which was described as a prerequisite of a due process violations by the U.S. Supreme Court in Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985).

Finally, the government contends that Congress gave the VA complete discretion in veterans’ health-care decisions, and therefore the finding of systemic VA due process violations was erroneous.

It argues that 38 U.S.C.1710(a)(1) dictates that the VA must first make a determination that particular health care is needed before a veteran has a right to it. The government explains that the nature of the determination will affect the time frame of a veteran’s receipt of benefits--but also that this is a medical judgment made by the VA, and no right exists until the determination is issued.

The plaintiff veterans’ organizations have until July 26 to respond to this petition, as ordered by the Ninth Circuit.

--Peter Siemons, CPR Intern