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MASS CLAIMS: The Ninth Circuit Agrees to Rehear, En Banc, Veterans Disability Delay Claims (Nov. 21).

The Ninth U.S. Circuit Court of Appeals has agreed to rehear en banc a controversial panel opinion holding that the U.S. Department of Veterans Affair’s disability appeals process violated the constitutional rights of military personnel by depriving them of their benefits.

The original decision, Veterans for Common Sense v. Shinseki, No. 08-16728 (9th Cir. May 10, 2011), put the VA’s Board of Veterans Appeals under federal court supervision.

The now-vacated 2-1 opinion, written by Circuit Judge Stephen Reinhardt, strongly criticized the VA for failing to provide servicemen and -women with timely adjudication of their disability claims. 

The rehearing is on a fast track.  Ron Elsberry, managing attorney at Disability Rights Advocates, a Berkeley, Calif., nonprofit advocacy law firm that represents the two plaintiff  veterans groups, says that the case will be argued the week of Dec. 12. 

"The Court of Appeals is acting with unusual speed," Elsberry notes in an E-mail, adding, "This action, I believe, shows recognition by the [c]ourt that veterans are in dire circumstances as each day.  . . . We are confident that the en banc panel will reaffirm the Court's prior ruling that the VA's unconscionable delays and bureaucratic dysfunction in providing proper care to veterans violates veterans' constitutional right to due process of law."

The appeals board has been plagued with lengthy delays for a decade.  The 79-page Ninth Circuit panel opinion opened by noting that on average, 18 veterans commit suicide each day; citing the district court, the opinion notes that between October 2007 and April 2008, at least 1,467 veterans died while their appeals were pending.

Chief Circuit Judge Alex Kozinski dissented, writing that the decision “dramatically oversteps its authority.” 

Both the majority and the minority opinion acknowledged the separation-of-powers issues in having a San Francisco federal district court oversee changes to the VA appeals board processes.  Those issues were at the heart of the U.S. Justice Department’s rehearing petition.

The full Ninth Circuit issued the rehearing order on Nov. 16.  Kozinski, along with “10 additional judges to be drawn by lot from the active judges of the Court,” are expected to hear the case, under the Ninth Circuit’s rules.  The circuit currently has 24 active judges and 18 on senior status.

The May panel was rounded out by Senior Circuit Judge Procter Hug Jr., who backed Reinhardt’s opinion.

The decision was the subject of this CPR web article, as well as an analysis of the U.S. Justice Department’s decision to appeal here.  For a more extensive analysis, see “ ‘This Is Their Wake-Up Call’:  Ninth Circuit Trashes the Veterans’ Administration Claim Processes,” 29 Alternatives 130 (July/August 2011)(available here with subscription/membership).  

The Ninth Circuit’s information on the case can be found on its en banc page, here.
The government’s successful rehearing petition, as well as the opposition brief by the two plaintiffs veterans’ groups, Veterans for Common Sense and Veterans United for Truth Inc., can be found here.

The San Francisco Chronicle's Thursday article on the Ninth Circuit's rehearing order can be found here.

--Russ Bleemer, Editor, Alternatives