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Mass Claims: Ninth Circuit, en banc, Reverses Panel Decision Holding Disability Claims Process Unconstitutional (May 7)

The Ninth U.S. Circuit Court of Appeals in San Francisco today reversed a panel decision holding that the delays in providing disability benefits to veterans were unconstitutional.

The reversal in Veterans for Common Sense v. Shinseki, No. 08-16728, (9th Cir. May 7, 2012) can be found here.

"VCS’s complaint sounds a plaintive cry for help, but it has been misdirected to us," concludes Circuit Judge Jay S. Bybee, writing for the 10-judge 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." 

Gordon P. Erspamer, the San Francisco-based Morrison & Foerster partner who serves as lead attorney for the advocacy groups Veterans for Common Sense and Veterans United for Truth Inc., says that the decision will be the subject of a cert petition asking the U.S. Supreme Court to review the case.

The en banc decision reverses or dismisses almost all claims for a lack of jurisdiction over the U.S. Department of Veterans Affairs' processes and procedures for administering benefits.  The system has been strained by the growing mass of claims for mental health disability benefits emanating from the Iraq wars and Afghanistan over the past two decades. 

One merits consideration survived, "related to procedures affecting adjudication of claims at the Regional Office level." The plaintiffs requested a generalized look at processes the VA uses, rather than the results of those processes.  They had asked the court to order pre-decision hearings, discovery and subpoena power, and the retention of paid counsel to assist in the submission of an initial claim, to help address the claims backlogs.

After holding that the U.S. District Court and the Ninth Circuit had jurisdiction over the examination of the adjudication processes, Bybee concluded, "We affirm the district court because the nonadversarial procedures at the Regional Office level are sufficient to satisfy due process."

The plaintiffs, the Ninth Circuit ruled, "cannot overcome the paramount interest Congress has in preserving a non-adversarial system of veterans’ benefits administration."

In her solo dissent, Senior Circuit Judge Mary Schroeder agreed with the court's ruling on jurisdiction regarding the Regional Office procedures.  She also agreed with the disposition, "because what Plaintiffs seek is inconsistent with the congressional purpose of simplified, nonadversarial proceedings."

But she wrote that the Ninth Circuit should have maintained jurisdiction over other claims that also speak to systemic issues, noting the prohibition from court review of agency decisions.

Schroeder explains, "The fundamental flaw in the majority’s reasoning is its mistaken assumption that adjudication of Plaintiffs’ systemic delay claims requires individualized examination of actual benefits determinations. Plaintiffs’ concern is not with the substance of any benefits decision. Their concern is with process."

You can find links to our items on the Ninth Circuit en banc hearing, and background on the long-running case, here and here.

--Russ Bleemer, Editor, Alternatives