Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1147


Judicial Remedy for VA Tardiness?

By Captain Samuel F. Wright, JAGC, USN (Ret.)

11.0—Veterans’ Claims

Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011).

On May 10, 2011, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed the decision of Judge Samuel Conti of the United States District Court for the Northern District of California.  Judge Conti declined to exercise his equity powers to require the United States Department of Veterans Affairs (VA) to be more prompt in providing psychiatric care to veterans suffering service-connected conditions like depression and Post Traumatic Stress Disorder (PTSD) and to adjudicate more promptly veterans’ disability claims involving such disorders.  In a scathing 104-page decision by Circuit Judge Stephen Reinhardt (joined by Circuit Judge Procter Hug, Jr.), the panel reversed Judge Conti’s decision and remanded the case to Judge Conti with instructions that he “enter an order consistent with this opinion” and exercise his equity powers to order the VA to fix these problems.

In an equally scathing 26-page dissent, Chief Judge Alex Kosinski stated, “The majority dramatically oversteps its authority, tearing huge gaps in the congressional scheme for judicial review of VA actions.  It overrules both Congress’s and the VA’s judgment on the amount of process due to veterans seeking benefits.  And it rearranges the VA’s organizational chart by appointing a district judge to head the agency.  Congress enacted the VJRA [Veterans Judicial Review Act] to beat back the last judicial power-grab targeted at the VA.  Unless corrected, today’s decision will surely prompt Congress to pass a new ‘VJRA Restoration Act’ to rein in the majority.”

The 9th Circuit is the federal appellate court that sits in San Francisco and hears appeals from district courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Marianas Islands, Oregon, and Washington.  The 9th Circuit is by far the largest of the 13 federal appellate courts, with 29 active judgeships.  As with all federal appellate courts, cases are heard by three-judge panels, with the option to grant en banc reconsideration by all the active judges of that appellate court. 

In recent years, the Supreme Court has overturned the 9th Circuit more frequently than any other circuit, and I predict that this case will be reviewed and overturned by the Supreme Court, unless the 9th Circuit grants en banc reconsideration and overturns the panel decision at that level.  If this decision does survive, I predict that it will not accomplish the goal of getting disabled veterans the care they need and the benefits they deserve in a more expeditious manner.  I do not see what Judge Conti can do as the judicial overseer of the VA that will improve the VA’s procedures.  He cannot order Congress to appropriate more money for the VA.  He conceivably could order VA employees to “work faster and make fewer mistakes,” but such an order would of course be ineffective.  If there is an improvement with respect to mental health care and claims, that improvement would likely come at the expense of other sorts of care and claims (loss of limbs, Agent Orange cancer claims, etc.) that the VA provides and adjudicates.

I do not doubt the veracity of reports about inordinate delays at the VA, both in providing medical care and in adjudicating claims.  I do not have a solution to that problem, but I think that judicial intervention is not the solution.  Please consider this a “call for papers.”  ROA members who are attorneys who practice before the VA and the Court of Veterans Claims:  What can be done to improve VA processes?  If you have ideas to share, please write a “Law Review” for ROA and submit it to us for publication in this column.

Note:  The 9th Circuit granted rehearing en banc and reversed this panel decision, remanding the case back to the United States District Court for the Northern District of California.  678 F.3d 1013 (9th Cir. 2012).  On remand, the District Court dismissed this lawsuit.  2012 U.S. Dist. LEXIS 102049 (N.D. Cal. July 20, 2012).  The plaintiffs then applied to the United States Supreme Court for certiorari (discretionary review), and the Supreme Court denied certiorari on January 7, 2013.  2013 U.S. LEXIS 406 (U.S. Jan. 7, 2013).  This case is now final.