Last year, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that “the VA’s failure to provide adequate procedures for veterans facing … delays in the delivery of mental health care violates the Due Process Clause of the Fifth Amendment [of the Constitution].” In addition, the Court found stark evidence of inexplicable delays in the benefits adjudication process, and ruled that the due process rights of veterans were violated by the absence of procedures designed to reduce delays in claim appeals. As a result, the Court remanded the case to the district court with instructions to enter an order consistent with the opinion. (I previously blogged about the 9th Circuit panel opinion.)

The Department of Veterans Affairs (“VA”) petitioned the Court for rehearing en banc, which was granted. (Cases in the United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case en banc. An “en banc” hearing refers to a court hearing where all judges of a court, the entire “bench”, will hear the case, rather than a panel of judges. It is often used for unusually complex cases or cases considered to be of greater importance.) On rehearing, the 9th Circuit Court of Appeals, by a vote of 10-1, rejected a lawsuit that sought to force the VA to overhaul its medical program for mental health care and reversed an earlier ruling that would have forced the government to speed up treatment requests and benefit claims, holding that the Court lacked jurisdiction to consider the claims. Veterans for Common Sense v. Shinseki (En Banc Decision of the 9th Circuit)

In 2007, two nonprofit organizations, Veterans for Common Sense and Veterans United for Truth, filed a class-action lawsuit on behalf of veterans with post-traumatic stress disorder eligible for or receiving medical services, and veterans applying for or receiving service-connected disability benefits.  Plaintiffs sought declaratory and injunctive relief, seeking (1) to enjoin the VA from permitting protracted delays in the provision of mental health care, and (2) to enjoin the VA from permitting protracted delays in the adjudication and resolution of disability-compensation claims. After a seven-day bench trial, the district court denied plaintiff’s claims, concluding that (1) with respect to the claim of failing to provide timely mental health care, ordering the relief requested would draw the district court into resolving when and how care would be provided—a role that it was not equipped to undertake, and (2) with respect to the VA’s administration of service-related disability compensation, the court lacked jurisdiction to review the causes of delayed adjudication.

Plaintiffs appealed. A panel of 9th Circuit, by a 2-1 majority, reversed the district court on the two constitutional claims mentioned above, finding that the government had violated veterans’ constitutional rights to receive timely healthcare and disability-compensation benefits that they are guaranteed by law.

The Court then granted the VA’s petition for rehearing en banc. In the latest appeal, the entire 9th Circuit Court concluded that it lacked jurisdiction to grant relief because Congress placed judicial review of veterans’ claims within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Federal Circuit Court of Appeals. The circuit court held:

[Plaintiffs’] complaint sounds a plaintive cry for help, but it has been misdirected to us. 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. … There can be no doubt that securing exemplary care for our nation’s veterans is a moral imperative. But Congress and the President are in far better position ‘to care for him who shall have borne the battle, and for his widow and his orphan.’ … We would work counter to the political branches’ own efforts by undertaking the type of institutional reform that [plaintiffs] request[]. Such responsibilities are left to Congress and the Executive, and to those specific federal courts charged with reviewing their actions; …

As a result, the Court concluded that the district court lacks jurisdiction to reach plaintiffs’ challenges to the alleged delays in the provision of mental health care, and plaintiffs’  claims related to delays in the adjudication of service-related disability benefits.

Plaintiffs have indicated that they will petition the Supreme Court for further review, reports The Washington Post.

Reactions of plaintiffs from the Veterans for Common Sense website, at, follow:

Paul Sullivan, former Executive Director of plaintiff Veterans for Common Sense, commented:  “I’m afraid to have to say it, but if military recruits ever became aware of what they were getting into, they would never enlist.  Roads out of the military all lead to a land of broken promises and in too many cases, abject misery.  We will see this case to the end.  We owe it to every veteran who has died in the service of our country or who now suffers from the signature diseases of theIraqandAfghanistanwars, post-traumatic stress disorder, and traumatic brain injury.” His successor as Executive Director, Patrick Bellon, said “I was always taught that the Constitution trumps statutes and that the Courts were the last bastions to preserve our liberties; today, that promise has proved hollow, and all I hear is the continuing echoes of men and woman in distress.  We should all feel their pain.  This day will be remembers as the day the country turned its back on its veterans.”

Sandy Cook, the Vice-Chair for Plaintiff Veterans United for Truth (VUFT), remarked:  “We are truly disturbed and ashamed to live in a society where the Courts have found corporations to enjoy more constitutional rights and protections than do our veterans, whom after all, are real people.  The message that this decision sends to the VA is that it can continue its unconstitutional practices unchecked by the power of the Courts.  It would not be an exaggeration to call it a carte blanche approval for the VA to continue to mishandle, mistreat, and stiff our veterans.”  Bob Handy, the President of VUFT, added:  “I should never underestimate the ability of our Courts to weave some rationale that leaves veterans out in the cold or on the street, homeless and destitute, without any recourse.  It is no wonder that the suicide rate is so high.”

The case is annexed here – Veterans for Common Sense v. Shinseki (En Banc Decision of the 9th Circuit)