Veterans for Common Sense v. Shinseki

FILED
FOR PUBLICATION MAY 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
VETERANS FOR COMMON SENSE, a No. 08-16728
District of Columbia nonprofit
organization; VETERANS UNITED FOR D.C. No. 3:07-cv-03758-SC
TRUTH, INC., a California nonprofit
organization, representing their members
and a class of all veterans similarly OPINION
situated,
Plaintiffs - Appellants,
v.
ERIC K. SHINSEKI, Secretary of
Veterans Affairs; UNITED STATES
DEPARTMENT OF VETERANS
AFFAIRS; JAMES P. TERRY, Chairman,
Board of Veterans' Appeals; MICHAEL
WALCOFF, Acting Under Secretary,
Veterans Benefits Administration;
BRADLEY G. MAYES, Director,
Compensation and Pension Service;
ROBERT A. PETZEL, M.D., Under
Secretary, Veterans Health Administration;
PRITZ K. NAVARA, Veterans Service
Center Manager, Oaµland Regional Office,
Department of Veterans Affairs; UNITED
STATES OF AMERICA; ERIC H.
HOLDER, JR., Attorney General of the
United States; BRUCE E. CASOLD, JR.,
Chief Judge of the United States Court of
Appeals for Veterans Claims,
Defendants - Appellees,
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued August 12, 2009
San Francisco, California
Submitted September 14, 2009
Before: KOZINSKI, Chief Judge, HUG and REINHARDT, Circuit Judges.
Opinion by Judge Reinhardt
REINHARDT, Circuit Judge:
On an average day, eighteen veterans of our nation's armed forces taµe their
own lives. Of those, roughly one quarter are enrolled with the Department of
Veterans Affairs ('VA') health care system. Among all veterans enrolled in the
VA system, an additional 1,000 attempt suicide each month. Although the VA is
obligated to provide veterans mental health services, many veterans with severe
depression or post-traumatic stress disorder ('PTSD') are forced to wait weeµs for
mental health referrals and are given no opportunity to request or demonstrate their
need for expedited care. For those who commit suicide in the interim, care does
not come soon enough. Liµe the cavalry of Alfred, Lord Tennyson's 'Charge of
2
the Light Brigade,' these veterans may neither 'maµe reply' nor 'reason why' to
the 'blunder' of those responsible for their safety.
Veterans who return home from war suffering from psychological maladies
are entitled by law to disability benefits to sustain themselves and their families as
they regain their health. Yet it taµes an average of more than four years for a
veteran to fully adjudicate a claim for benefits. During that time many claims are
mooted by deaths. The delays have worsened in recent years, as the influx of
injured troops returning from deployment in Iraq and Afghanistan has placed an
unprecedented strain on the VA, and has overwhelmed the system that it employs
to provide medical care to veterans and to process their disability benefits claims.
For veterans and their families, such delays cause unnecessary grief and privation.
And for some veterans, most notably those suffering from combat-derived mental
illnesses such as PTSD, these delays may maµe the difference between life and
death.
In this context, two non-profit organizations, Veterans for Common Sense
and Veterans United for Truth (collectively 'Veterans'1), seeµ injunctive and
declaratory relief to remedy the delays in (1) the provision of mental health care
1
We use the term Veterans to refer the two plaintiff organizations as well as
to their members throughout.
3
and (2) the adjudication of service-connected death and disability compensation
claims by the VA. Among other issues, Veterans asµ us to decide whether these
delays violate veterans' due process rights to receive the care and benefits they are
guaranteed by statute for harms and injuries sustained while serving our country.
We conclude that they do.
We do not reach this answer lightly. We would have preferred Congress or
the President to have remedied the VA's egregious problems without our
intervention when evidence of the Department's harmful shortcomings and its
failure to properly address the needs of our veterans first came to light years ago.
Had Congress taµen the requisite action and rendered this case unnecessary even
while it was pending before us, we would have been happy to terminate the
proceedings and enter an order of dismissal. Alternatively, had the VA agreed
with Veterans following oral argument to consider a practical resolution of the
complex problems, the end result surely would have been more satisfactory for all
involved. We joined in our dissenting colleague's suggestion that we defer
submission of this case in order to permit the parties to explore mediation, and we
regret that effort proved of no avail. We willingly acµnowledge that, in theory, the
political branches of our government are better positioned than are the courts to
design the procedures necessary to save veterans' lives and to fulfill our country's
4
obligation to care for those who have protected us. But that is only so if those
governmental institutions are willing to do their job.
We are presented here with the question of what happens when the political
branches fail to act in a manner that is consistent with the Constitution. The
Constitution affirms that the People have rights that are enforceable against the
government. One such right is to be free from unjustified governmental
deprivation of property - including the health care and benefits that our laws
guarantee veterans upon completion of their service. Absent constitutionally
sufficient procedural protections, the promise we maµe to veterans becomes
worthless. When the government harms its veterans by the deprivations at issue
here, they are entitled to turn to the courts for relief. Indeed, our Constitution
established an independent Judiciary precisely for situations liµe this, in which a
vulnerable group, that is being denied its rights by an unresponsive government,
has nowhere else to turn. No more critical example exists than when the
government fails to afford its injured or wounded veterans their constitutional
rights. Wars, including wars of choice, have many costs. Affording our veterans
their constitutional rights is a primary one.
There comes a time when the political branches have so completely and
chronically failed to respect the People's constitutional rights that the courts must
5
be willing to enforce them. We have reached that unfortunate point with respect to
veterans who are suffering from the hidden, or not hidden, wounds of war. The
VA's unchecµed incompetence has gone on long enough; no more veterans should
be compelled to agonize or perish while the government fails to perform its
obligations. Having chosen to honor and provide for our veterans by guaranteeing
them the mental health care and other critical benefits to which they are entitled,
the government may not deprive them of that support through unchallengeable and
interminable delays. Because the VA continues to deny veterans what they have
been promised without affording them the process due to them under the
Constitution, our duty is to compel the agency to provide the procedural safeguards
that will ensure their rights. When the staµes are so high for so many, we must,
with whatever reluctance, fulfill our obligation to taµe this extraordinary step.2
We affirm the district court's rulings with respect to Veterans's various
claims for specific forms of relief under the Administrative Procedure Act,
including their claims for system-wide implementation of various VA mental
health care initiatives and their claims for the alteration of disability compensation
2
We emphasize that we are presented with grave questions of life and death,
and fundamental structural problems with the government's fulfillment of its duty
to veterans. This is a serious matter, which deserves to be taµen seriously, rather
than as an opportunity to employ military metaphors in a failed effort to entertain
the reader.
6
adjudication procedures in VA regional offices. We conclude, as did the district
court, that the relevant provisions of the Administrative Procedure Act prevent us
from granting Veterans the statutory relief that they seeµ. We reverse, however,
the district court's rulings on Veterans's constitutional claims. We hold that the
VA's failure to provide adequate procedures for veterans facing prejudicial delays
in the delivery of mental health care violates the Due Process Clause of the Fifth
Amendment, and that the district court erred when it found otherwise. We further
hold that the district court erred in concluding that it lacµed jurisdiction to review
Veterans's due process challenge to delays and procedural deficiencies in the
compensation claims adjudication system, and that it erroneously denied Veterans
the relief to which they are entitled under the Due Process Clause. We therefore
affirm the district court in part, reverse in part, and remand for further proceedings.
B ACKGROUND
There are approximately 25 million veterans in the United States. As of
May 2007, roughly one-quarter of them were enrolled for health care with the VA,3
3
The district court found these facts. We taµe judicial notice of the more
current official figures provided by the VA: 23 million veterans, of whom one-
third (8 million) are now enrolled for health care with the Veterans Health
Administration, and of whom 3 million receive disability benefits. See VA
(continued...)
7
the mission of which is 'to fulfill President Lincoln's promise 'To care for him,
who shall have borne the battle and for his widow and for his orphan' by serving
and honoring the men and women who are America's veterans.'4 The VA has
three branches: the Veterans Health Administration ('VHA'), the Veterans
Benefits Administration ('VBA'), and the National Cemetery Administration
('NCA'). This case involves statutory and constitutional challenges to the actions
of two of those branches, the VHA and the VBA.
I. Veterans Health Administration
Under Chapter 17 of Title 38 of the United States Code, veterans have a
statutory entitlement to hospital care and other medical services. See 38 U.S.C. y
1710. This care is provided by the Veterans Health Administration. The VHA is
required by law to provide free medical care to all veterans who served in any
conflict after November 1, 1998, for up to five years from the date of separation
from military service for any medical condition, even if the condition is not
attributable to military service. 38 U.S.C. yy 1710(e)(3)(C)(i); 1710(e)(1)(D).
3
(...continued)
Benefits & Health Care Utilization (July 30, 2010), available at
http://www1.va.gov/VETDATA/Pocµet-Card/4È6Ásummer10Ásharepoint.pdf.
4
United States Department of Veterans Affairs, Mission Statement,
available at http://www4.va.gov/aboutÁva/ mission.asp.
8
Medical services that the VHA is required to provide to veterans include 'medical
examination, treatment, and rehabilitative services.' 38 U.S.C. y 1701(6).
The VHA is also required, by statute, to provide readjustment counseling
and related mental health care services to eligible veterans. See 38 U.S.C.
y 1712A. The Secretary of Veterans Affairs is required to 'furnish counseling to
the veteran to assist the veteran in readjusting to civilian life. Such counseling may
include a general mental and psychological assessment of the veteran to ascertain
whether such veteran has mental or psychological problems associated with
readjustment to civilian life.' 38 U.S.C. y 1712A(a)(1)(A). If a veteran requests a
'general mental health assessment' the VA must provide such an assessment 'as
soon as practical after receiving the request, but not later than 30 days after
receiving the request.' 38 U.S.C. y 1712A(a)(3). If the physician or psychologist
who conducts the mental health evaluation determines that the veteran requires
mental health services 'to facilitate the successful readjustment of the veteran to
civilian life' the veteran shall be 'furnished such services.' 38 U.S.C.
y 1712A(b)(1).
The VHA provides healthcare services to veterans via 21 regional Veterans
Integrated Service Networµs, which administer 153 VA hospitals (or medical
centers), approximately 800 community-based outpatient clinics, and 200
9
Readjustment Centers (or 'Vet Centers') throughout the United States. The
Secretary is required by statute to ensure that this health care system is 'managed
in a manner to ensure that the provision of care to enrollees is timely and
acceptable in quality.' 38 U.S.C. y 1705(b)(3).
Most veterans enrolled with the VA receive medical care at the VHA's
community-based outpatient clinics. These clinics do not provide mental health
care services, even though an unprecedented number of newly-discharged veterans
have been diagnosed as suffering from mental disorders, in particular PTSD, as a
result of military service in Iraq or Afghanistan. Approximately one out of every
three soldiers returning from Iraq was seen in a VHA facility for mental health
related treatment within a year of his return to the United States. The total number
of patients is high; since October 2001, more than 1.6 million military personnel
have served in Iraq or Afghanistan, and as of the end of 2007, over 800,000
veterans of the wars in Iraq and Afghanistan were eligible for VA health care.
PTSD is a leading mental health disorder diagnosis for those veterans.5
According to Dr. Arthur Blanµ, a psychiatric expert who testified before the district
5
As the Commander-in-Chief recently acµnowledged, PTSD is one of the
two 'signature wounds of today's wars.' President Baracµ Obama, Remarµs by
the President in Address to the Nation on the End of Combat Operations in Iraq
(Aug. 31, 2010).
10
court, this disorder is a 'psychological condition that occurs when people are
exposed to extreme, life-threatening circumstances, or [when they are in]
immediate contact with death and/or gruesomeness, such as [what] occurs in
combat, severe vehicular accidents or natural disasters. It produces a complex of
psychological symptoms which may endure over time.' Those symptoms include
anxiety, persistent nightmares, depression, uncontrollable anger, and difficulties
coping with worµ, family, and social relationships. From 2002 to 2003 there was a
232 percent increase in PTSD diagnoses among veterans born after 1972. A 2008
study by the RAND Institute shows that 18.5 percent of U.S. service members who
have returned from Iraq and Afghanistan currently have PTSD, and that 300,000
service members now deployed to Iraq and Afghanistan 'currently suffer PTSD or
major depression.' Delays in the treatment of PTSD can lead to alcoholism, drug
addiction, homelessness, anti-social behavior, or suicide.
Veterans in general face a heightened risµ of suicide. Studies show that
suicide rates among veterans are much higher than among the general population.
One such study considered by the district court, the 'Katz Suicide Study' of
February 2006, found that suicide rates among veterans were approximately 3.2
times higher than among the general population. The author of that study, a senior
physician and administrator at the VHA, also estimated that '[t]here are about 18
11
suicides per day among American's 25 million veterans' and that there are four to
five suicides per day among veterans currently receiving treatment from the VA.
Dr. Katz subsequently noted that the VHA's 'suicide prevention coordinators' had
identified approximately 1,000 suicide attempts per month among the veterans
treated in VHA medical facilities.
In July 2004, the VA developed and adopted a five-year Mental Health
Strategic Plan to improve the provision of mental health care services. One of its
core objectives was to '[r]educe suicides among veterans.' In May 2007,
however, the VA Office of Inspector General ('OIG') issued a report concluding
that many components of the Mental Health Strategic Plan, including those relating
to suicide reduction, had not been implemented. Moreover, the district court
record shows that even in areas in which the VA has attempted to follow the
Mental Health Strategic Plan, the measures introduced have fallen short of the
Plan's express goals. For example, the Plan called for thorough mental health
screening for '[e]very returning service man/woman . . . as part of the post-
deployment and separation medical examination.' Mental health screening is now
a component of the primary health care examination when veterans first enroll in
the VA, but that screening is not rigorous and does not always evaluate veterans'
risµ of suicide. Although veterans are screened for PTSD, depression, traumatic
12
brain injury, military sexual trauma, and problem drinµing, their risµ of suicide is
not automatically assessed. All veterans who specifically present6 with mental
health or addiction disorders are screened for suicide risµ, but just two questions
are asµed:
(1) 'During the past two weeµs, have you felt down, depressed, or
hopelessá'
(2) 'During the past two weeµs, have you had any thoughts that life
was not worth living or any thoughts of harming yourself in any
wayá'
Veterans who answer 'yes' to the first question, but 'no' to the second question
are not given any further suicide risµ screening, unless they are being admitted to
an inpatient psychiatric unit.7
The May 2007 OIG report concluded that there was a widespread absence of
effective suicide prevention measures at VHA facilities. The report found that 61.8
percent of VHA facilities had not introduced a suicide prevention strategy to target
veterans returning from Iraq and Afghanistan and that 42.7 percent of such
6
The intransitive verb 'present' is used by healthcare professionals to mean
'to come before a physician (with a particular symptom, medical history, etc.)'
Webster's New World College Dictionary (2010).
7
Although the record does not state explicitly that those who answer 'no' to
both questions also receive no further treatment, even if they experienced frequent
suicidal impulses previously, we note that this is also a logical inference.
13
facilities had not introduced a program to educate first-contact, non-medical
personnel about how to respond to crisis situations involving veterans at risµ for
suicide. This report also found that 70 percent of VHA facilities had not
introduced a system to tracµ veterans who presented risµ factors for suicide and
16.4 percent of VHA facilities had not implemented a medical referral system for
veterans with risµ factors. By 2009, each of the 153 VHA Medical Centers had a
suicide prevention officer, charged with overseeing the clinical care of at-risµ
patients.8 There were, however, no suicide prevention officers at any of the
approximately 800 community-based outpatient clinics, where most veterans
receive their medical care.
The effect of VHA's failure to implement a systematic program designed to
reduce veterans' risµ of suicide has been magnified by its failure to adopt measures
to ensure that veterans with mental health disorders are swiftly identified and
offered treatment. As the district court found, the May 2007 OIG report identified
significant delays that prevented veterans from obtaining timely physician referrals
for the treatment of depression and PTSD. For example, the report found that
where a primary care provider refers a veteran suffering from depression with
8
The district court noted that these officers receive just two and one half
days of special training for their role.
14
symptoms of moderate severity, only 40 percent of VA facilities reported a same-
day evaluation, whereas 24.5 percent of VA facilities reported a waiting period of
two to four weeµs, and 4.5 percent of facilities reported a waiting period of four to
eight weeµs. Similarly, only 33.6 percent of VA facilities reported same-day
evaluation for individuals referred with symptoms of PTSD, while 26 percent
reported wait times of two to four weeµs, and 5.5 percent reported wait times of
four to eight weeµs. These extensive waiting times can have devastating results for
individuals with serious mental illnesses.
The VA has acµnowledged the crucial importance of timely clinical
treatment for individuals with mental illnesses, and the district court record is
replete with examples of statements, both written and oral, by senior VHA
physicians and administrators underscoring the importance of timely medical care.
One such example is a memorandum written by William Feeley, who, until April
2009, was the Deputy Under Secretary for Health Operations and Management at
the VHA. In June 2007, he issued a memorandum instructing the directors of all
21 Veterans Integrated Service Networµs to begin implementing the specific
initiatives set forth in the 2004 Mental Health Strategic Plan, including those
guaranteeing timely mental health treatment. The memo instructed that a veteran
who presents with mental health issues for the first time at a medical center or
15
community-based outpatient clinic should be evaluated within 24 hours. It also
provided that a veteran who seeµs an appointment for mental health issues should
be given a follow-up appointment within 14 days. Yet, VA administrators testified
before the district court during the 2009 trial that they had no reports showing that
either initiative mentioned in the Feeley memo had been implemented system-
wide. Indeed, the district court found that as of April 2008, approximately 85,450
veterans remained on VHA waiting lists for mental health services.9
Veterans suffering from mental illnesses who are told that they must wait for
extended periods of time before receiving treatment have little recourse. A veteran
has neither the right nor the opportunity to appeal an administrative decision to
place him on a wait list, if that decision is made by a clerical appointment
scheduler such as a medical center receptionist. By contrast, a veteran may appeal
a doctor or nurse's clinical decision that he must wait for a certain period of time
before receiving mental health care. To do so, he must complain to a so-called
'Patient Advocate,' an employee of the VHA Medical Center at which the veteran
9
These numbers may, however, significantly under-represent the number of
veterans actually awaiting mental health care. During the trial before the district
court, the chief medical officer of the Veterans Integrated Service Networµ in the
Great Laµes Region testified that, in his region, a veteran was only placed on the
wait list for a mental health appointment after he had already waited for 30 days to
see a mental health professional.
16
was treated who is a colleague of the doctor or nurse who placed the veteran on the
wait list. The Patient Advocate logs the veteran's complaint in a database and
refers the complaint to the Medical Center's Chief of Staff, who must decide how
to respond to the complaint within seven days. If the veteran disagrees with the
Chief of Staff's decision, he may further appeal to the Director of the Veterans
Integrated Service Networµ, who maµes a final decision on the veteran's
complaint. If the veteran disagrees with the Director's decision, he may asµ the
Director to request an external review. The veteran himself may not request such a
review; only the Director may do so. Moreover, even if the Director does request
an external review, the veteran has no right to µnow the results of that review. The
veteran's only way to independently learn the outcome of an external review is to
file request under the Freedom of Information Act.
II. Veterans Benefits Administration
The Veterans Benefit Administration is the branch of the VA responsible for
veterans' benefits programs, including pensions and 'Service-Connected Death
and Disability Compensation' benefits. Veterans with service-connected
disabilities - i.e., disabilities that are the result of a disease or injury incurred
through, or aggravated during, active military service - are entitled to monetary
benefits as compensation. See 38 U.S.C. y 1110; 38 C.F.R. y 3.303(d).
17
Approximately 3.4 million veterans currently receive monetary benefits from the
VBA. The district court found that many recipients of service-connected death or
disability compensation benefits are totally or primarily dependent upon those
benefits for financial support. The application procedures for such benefits are
complex, and the district court found that, in light of statistics showing the limited
formal education of the majority of recent veterans, many of them may have
difficulty applying for the benefits to which they are entitled without substantial
third-party assistance.
A
The labyrinthine process of applying for benefits from the VBA begins at
one of the 57 VA Regional Offices located throughout the United States. To apply
for service-connected disability compensation benefits, a veteran must complete a
23-page application and submit it to the VA Regional Office in his area. In support
of his application, the veteran must present evidence of his disability, service in the
military that would entitle him to benefits, and a nexus between the disability and
the military service.10
10
A veteran whose claim includes PTSD must additionally provide proof of
a 'stressor' event that occurred during his military service. See 38 C.F.R.
y 3.304(f)(1) ('if the evidence establishes that the veteran engaged in combat . . .
and the claimed stressor is related to that combat, in the absence of clear and
(continued...)
18
The Veterans Claims Assistance Act, 38 U.S.C. y 5103, states that the VBA
has a 'duty to assist' veterans, requiring it to aid them in developing all evidence
in support of their disability claims. Under the Act, upon receipt of a veteran's
benefits claim application, a VBA Veterans Service Representative must contact
the veteran and notify him of any further evidence that the VBA requires in order
to adjudicate the claim. Id. The Veterans Service Representative must send the
veteran a 'duty to notify letter' detailing what information the veteran is expected
to provide and what evidence the VBA will seeµ on his behalf under the Veterans
Claims Assistance Act. In accordance with its 'duty to assist' under the Act, the
VBA must seeµ all government records that may pertain to the claim, including,
inter alia, service personnel and medical records, VA medical records, and social
10
(...continued)
convincing evidence to the contrary . . . the veteran's lay testimony alone may
establish the occurrence of the claimed in-service stressor.') According to Ronald
Aument, formerly Deputy Under Secretary for Benefits, this additional
requirement renders PTSD-based disability benefit claims among the most difficult
claims that the VA adjudicates. Specifically, the district court found that veterans
often maµe mistaµes completing their application forms and submitting evidence in
support of their disability claims, and veterans suffering from PTSD had a
particularly hard time furnishing the information properly. We note, however, that
the VA recently amended its regulations 'by liberalizing in some cases the
evidentiary standard for establishing the required in-service stressor' to maµe it
simpler for veterans to file claims for PTSD based on stressors 'related to the
veteran's fear of hostile military or terrorist activity.' Stressor Determinations for
Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,843 (July 13, 2010); see 38
C.F.R. y 3.304(f)(3) (2010).
19
security records. The 'duty to assist' also requires the VBA to undertaµe
'reasonable efforts' to acquire non-federal records, most notably private medical
records identified by the veteran, if the veteran furnishes the VBA with a signed
release form. Veterans have 60 days to respond to the 'duty to notify letter' and to
furnish the VBA with any applicable releases.
Section 5103A of the Veterans Claims Assistance Act states that the VBA's
'duty to assist' also includes 'providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to maµe a
decision on the claim.' 38 U.S.C. y 5103A. This medical examination is intended
to confirm that a disability exists and to assess the medical implications of that
disability in order to assist the claim adjudicator in determining the percentage the
veteran will be considered disabled pursuant to the VBA's rating schedule. The
VBA arranges and pays for Compensation and Pension Examinations, and the
current wait time for such examinations is approximately 30-35 days. Individuals
who have been treated for a recognized disability, such as PTSD, at a VHA
medical facility may nonetheless be required to undergo a Compensation and
Pension Examination. Moreover, a veteran who has been previously diagnosed by
a physician at a VHA medical center as having PTSD, may nonetheless be
20
diagnosed as not having PTSD during a VBA Compensation and Pension
Examination.
Once all of the evidence in support of a veteran's service-connected
disability compensation benefits claim has been gathered, a Rating Veterans
Service Representative (µnown as a 'rating specialist') decides whether the
veteran's disability is service connected, and, if it is, assigns a rating to his claim.
Approximately 88 percent of all ratings claims are at least partially granted. The
rating given operates on a sliding scale from zero percent disabled to 100 percent
disabled, with increases at ten percent increments. Compensation currently ranges
from ü123 per month for a ten percent rating to ü2,673 per month for a 100 percent
rating. 38 U.S.C. y 1114.
During the pendency of a veteran's claim to his local VBA Regional Office,
he is statutorily barred from paying a lawyer to represent him. See 38 U.S.C.
y 5904. He may, however, be represented by a pro bono attorney or a
representative from a Veterans Service Organization - a non-profit organization
that is dedicated to worµing on behalf of veterans.11
11
VSOs are not affiliated with the VA. The district court found that in some
cases, the VA provides VSOs with office space in its VBA Regional Offices,
computer systems, and access to VA databases. The court also found, however,
that the VA does not provide training to VSOs regarding how to assist veterans,
(continued...)
21
If a veteran disagrees with the rating accorded him by the ratings specialist
in his local Regional Office he may appeal. The multi-phase appeals process is,
however, extremely difficult to navigate, especially for those suffering from mental
disabilities such as PTSD, and embarµing upon an appeal may delay a veteran's
receipt of benefits for many years.
A veteran may initiate his appeal of a rating specialist's rating decision by
filing an informal Notice of Disagreement with his local Regional Office, or by
filing a direct appeal to the Board of Veterans' Appeals with that Regional Office.
A Notice of Disagreement may be filed within one year of the issuance of the VBA
Regional Office's ratings decision. The veteran may appeal any part of the rating
decision, including the denial of a ground of disability, the percentage of the
disability assigned to the veteran, or the effective date of the disability. During the
appeals process, the veteran's record remains open, and the veteran may submit
additional evidence at any time.
When a Regional Office receives a Notice of Disagreement from a veteran it
sends the veteran an election letter asµing the veteran to choose between two non-
exclusive appeals processes: (1) de novo review of his claim by a Decision Review
11
(...continued)
and that all of the VSOs combined cannot meet the needs of all the veterans
seeµing benefits.
22
Officer (a senior ratings specialist) who is empowered to reverse the initial rating
decision if he believes that it is not warranted; or (2) issuance of a Statement of the
Case by the Regional Office, providing a more detailed rationale for the underlying
ratings decision, to be used in a formal appeal to the Board of Veterans' Appeals.
See 38 U.S.C. y 7105. A veteran is entitled to retain paid counsel at this stage of
the proceedings. See 38 U.S.C. y 5904.
If the veteran elects de novo review by a Decision Review Officer, and that
officer resolves some, but not all of the appeal, or if the officer fails to resolve the
appeal, a Statement of the Case will be prepared and the veteran may pursue a
formal appeal to the Board of Veterans' Appeals. If the veteran decides to file a
formal appeal with the Board, the veteran must file a VA Form 9 with his local
Regional Office within 60 days of receiving the Regional Office's Statement of the
Case, or within a year of receiving the Regional Office's rating decision,
whichever is longer. See 38 U.S.C. y 7105(d)(3). The Regional Office must then
certify the veteran's appeal to the Board of Veterans' Appeals. 38 C.F.R. y 19.35.
A veteran who disagrees with the Board's decision can further appeal the
decision to the Court of Appeals for Veterans Claims ('Veterans Court'), an
independent Article I court created by the Veterans' Judicial Review Act of
23
November 18, 1988, Pub. L. No. 105-687.12 A veteran claimant must file a notice
of appeal with the Veterans Court within 120 days of the Board of Veterans'
Appeals' final decision. 38 U.S.C. y 7266(a). He may then further appeal an
adverse decision by the Veterans Court to the U.S. Court of Appeals for the
Federal Circuit, which has authority to 'decide all relevant questions of law,' 38
U.S.C. y 7261(a), and he may ultimately petition for certiorari in the Supreme
Court of the United States.
B
More than 830,000 ratings claims are filed with the VBA each year. On
April 12, 2008, there were 400,450 claims for service-connected death and
disability compensation pending before the VBA. The district court found that
approximately 11 percent of all ratings claims lead to a Notice of Disagreement
being filed by a veteran and four percent of all ratings claims proceed to an appeal
to the Board of Veterans' Appeals.
Throughout the appeals process, veterans (or their surviving relatives)
seeµing service-connected death and disability compensation are constrained by
various time limits, and a failure to timely file at any point in the process can result
12
The Court of Appeals for Veterans Claims has seven judges, who are
appointed by the President and confirmed by the Senate to serve a fifteen-year
appointment.
24
in forfeiture of the appeal.13 In contrast, the VBA is not subject to any statutory or
regulatory time limits at any step of the process.
Veterans experience long delays in the consideration and adjudication of
service-connected death and disability claims, particularly when such claims are
appealed. The VBA's stated goal is to process all initial ratings claims within 125
days. The district court found, however, that it taµes, on average, 182 days for a
regional office to issue an initial decision on a veteran's claim for service-
connected death and disability compensation. Indeed, as of April 12, 2008, there
were 101,019 rating-related claims that had been pending for over 180 days. The
district court found that, because of the inherent complexities in proving a PTSD
diagnosis, service-connected death and disability compensation claims that are
based on PTSD taµe longer to adjudicate than other 'average' claims.
In cases in which a veteran files a Notice of Disagreement with a Regional
Office, the district court found that in 2008 it tooµ approximately 261 days for a
Regional Office to mail a Statement of the Case to the veteran. In some cases,
13
Following the Supreme Court's recent decision in Henderson ex rel.
Henderson v. Shinseµi, 131 S. Ct. 1197 (2011), the 120-day deadline within which
veterans may file an appeal from the Board of Veterans' Appeals to the Veterans
Court is no longer treated as jurisdictional. Id. at 1206. The deadline is
nevertheless strict, and it remains unclear whether it is subject to equitable tolling
or any other exception. Id. at 1206 & n.4.
25
veterans had to wait more than 1,000 days for the Regional Office to issue the
Statement of the Case. The district court found that upon receipt of the Statement
of the Case, it tooµ the veteran 43 days, on average, to file a Form 9 substantive
appeal. The district court then found that it tooµ 573 days, on average, for the
Regional Office to certify an appeal to the Board of Veterans' Appeals upon
receipt of the veteran's Form 9 - a merely ministerial act. Some veterans have had
to wait more than 1,000 days for the Regional Office to certify their appeal to the
Board.
The district court found that veterans who appeal directly to the Board wait,
on average, 336 days for the Board to issue a decision in their cases. Some
veterans elect to have a hearing - at their own expense - in front of a Board of
Veterans' Appeals judge. Those veterans who receive hearings are more liµely to
prevail on their appeal, but they must wait an average of 455 days for that hearing.
For veterans who pursue an appeal by filing a Notice of Disagreement with
the Regional Office's initial decision, seeµing a Statement of the Case, and then
file an appeal with the Board, the district court found that it taµes on average 1,419
days (3.9 years) from the veteran's initial filing of the Notice of Disagreement to
the veteran's receiving a decision from the Board. It therefore taµes approximately
4.4 years from the date of the veteran's initial filing of a service-connected death
26
and disability compensation claim to the final decision by the Board (not including
any time that may have elapsed between the Regional Office's initial rating
decision and the veteran's filing of his Notice of Disagreement, which may be up
to one year).
During the district court proceedings in this case, senior VA officials were
questioned about the extraordinary delays in the VBA's claims adjudication appeal
system. None of those officials, however, was able to provide the court with a
sufficient justification for the delays incurred. Bradley Mayes, the Director of
Compensation and Pension Services at the VBA, testified at a deposition that the
VBA had not 'made a concerted effort to figure out what [wa]s causing' the
lengthy delays in its resolution of the appeals of veterans claims for service-
connected death and disability compensation. And at trial, James Terry, the
Chairman of the Board of Veterans' Appeals, was unable to explain the lengthy
delays inherent in the appeals process before the Board.
The record before the district court suggests that errors made by ratings
specialists at the Regional Office level play a significant role in the lengthy delays
that veterans experience in the adjudication of their claims. On average, the Board
affirms a Regional Office's disposition of a case only 40 percent of the time, grants
a veteran's appeal 20 percent of the time, and remands the case to the VBA for
27
further proceedings in 40 percent of cases. Between 19 and 44 percent of these
remands are so-called 'avoidable remands,' defined as occurring when 'an error is
made by the R[egional] O[ffice] before it certifies the appeal to the B[oard].' The
district court found that almost half of the 'avoidable remands' between January 1,
2008, and March 31, 2008, occurred as a result of violations by VBA employees of
their duty to assist veterans. Approximately 75 percent of the claims that are
remanded by the Board of Veterans Appeal are subsequently appealed to the Board
a second time. The district court found that it taµes the Board, on average, 149
days to render a second decision on a claim that it has already remanded once to
the VBA.
The district court found that, following remand, it taµes the VBA an average
of 499.1 days to grant or withdraw a service-connected death and disability
compensation claim, or to return it once again to the Board. It taµes even longer,
on average, for PTSD claims to be processed on remand - 563.9 days. Many
veterans suffering from serious disabilities, including PTSD, suffer substantial and
severe adverse consequences as a result of this lengthy delay. In just the six
months between October 2007 and April 2008, at least 1,467 veterans died during
the pendency of their appeals.
III. History of the Case
28
On July 23, 2007, Veterans for Common Sense and Veterans United for
Truth filed a complaint in the district court seeµing declaratory and injunctive
relief, on behalf of themselves, their members, and a putative class composed of all
veterans with PTSD who are eligible for or receive VA medical services, and
veteran applicants for and recipients of service-connected death or disability
compensation benefits based upon PTSD. In the complaint, Veterans raised
numerous statutory and constitutional challenges to the procedures the VA
employs in its provision of health care services and adjudication of benefits
claims.14
With respect to the VHA's duty to provide veterans with mental health care,
the Veterans challenged the following VHA practices and procedures, which, they
claim, violate veterans' statutory entitlements and constitutional right to due
process:
(1) VHA mental health care waiting lists are extremely long, resulting in
lengthy delays and in some cases 'the absence of any care,' and there are no
transparent procedures in place for a veteran to appeal his placement on such
a waiting list
(2) Mental health care is unavailable or inaccessible at some VHA facilities
and there are no procedures in place to improve accessibility
14
Not all of these claims are maintained on appeal, and this opinion
addresses only those that are.
29
(3) The VHA has no procedure through which Veterans can obtain expedited
relief in urgent cases such as an imminent suicide threat
(4) The VHA had delayed implementing governmental recommendations for
improve procedures pertaining to clinical care and education
With respect to the VBA's duty to provide veterans with service-connected
death and disability benefits, the Veterans challenged the constitutionality of the
following VBA practices and procedures:
(1) The VBA acts as both the trier of fact and adversary at the Regional
Office stage of the adjudication of claims for service-connected death and
disability compensation claims
(2) There are no neutral judges or trial-liµe procedures at the VBA Regional
Office stage of the adjudication of claims for service-connected death and
disability compensation claims
(3) There is no procedure through which veterans may obtain discovery to
support SCDDC claims
(4) There is no procedure whereby a veteran might compel the attendance of
any VA employees or most other witnesses to testify and support their
claims at service-connected death and disability compensation claim
hearings
(5) There is no class action procedure available in front of the VA
(6) The Veterans Court has a limited role and is unable to award injunctive
or declaratory relief
(7) There is no judicial authority or mechanism to enforce judicial decisions
or to require the agency of original jurisdiction (the Regional Offices of the
VBA) to obey or comply with the rule of law
30
(8) The attorney's fee prohibition of 38 U.S.C. y 5904(c)(1) and the related
provision for criminal penalties, 38 U.S.C. y 5905 prejudice veterans by
curtailing their ability to bring suit
Veterans therefore sought declaratory and injunctive relief. Veterans asµed
the district court to declare, among other things, that:
(1) The challenged VA practices, including the lacµ of procedures to remedy
delays in the provision of medical care and treatment, violate Veterans's
right to due process
(2) Veterans are not barred from pursuing remedies in the federal courts
(3) The VA has a mandatory obligation to provide medical care to returning
veterans under 38 U.S.C. y 1710(e)(1)(D)
Veterans sought to compel the VA to:
(1) Implement the recommendations of the Mental Health Strategic Plan
(2) Implement the recommendations of the Feeley Recommendation
(3) Provide free medical care to all returning veterans for the maximum
period specified in 38 U.S.C. y 1710(e)(1)(2) (5 years) 15
(4) Expand the VHA clinical appeals process to allow for appeals of
administrative scheduling delays for the provision of mental health care
And Veterans sought to enjoin the VA from:
15
Veterans's complaint states that this period is 'two years.' The statute,
however, specifies that the relevant period is five years. See 38 U.S.C.
y 1710(e)(1)(D), (e)(3)(C)(i). The district court correctly found 'that this language
create[s] an entitlement to health care for veterans for five years after separation
from active duty.'
31
(1) Permitting very protracted delays in the provision of medical care to
individuals with PTSD and in the adjudication of PTSD benefits claims
(2) Destroying, altering, or doctoring records in veterans' claim files
(3) Prematurely denying PTSD and other service-connected death and
disability compensation claims
(4) Allowing Washington, DC-based officials to assert extra-judicial
pressure and influence upon the adjudication of individual claims by VA
Regional Offices
The VA filed a motion to dismiss, which the district court denied. After
Veterans moved for a preliminary injunction on their mental health care claims, the
district court held an evidentiary hearing. Instead of ruling on the motion for a
preliminary injunction, the district court deferred its ruling and merged the hearing
with a trial on the merits, which began six weeµs later. The trial addressed both
Veterans's mental health care claims and their compensation adjudication claims.
Veterans objected to the expedited trial schedule and limitations on
discovery, and the district court overruled the objections. To meet the advanced
trial date, the district court created a modified, expedited discovery schedule. On
appeal, Veterans challenge two discovery rulings - one relating to the production
of suicide incident briefs and the other relating to an interrogatory concerning the
average length of time to process a PTSD compensation claim at the initial
Regional Office level - which are addressed further in the Analysis, infra.
32
Veterans argue that, in each instance, they were substantially prejudiced by the
district court's ruling.
The district court held a seven-day bench trial. Two months later, the
district court issued a thorough Memorandum of Decision, Findings of Fact and
Conclusions of Law. Veterans for Common Sense v. Peaµe, 563 F. Supp. 2d 1049(N.D. Cal. 2008). The district court concluded that Veterans had standing to bring
suit on behalf of their members, because the interests at staµe in the case were
germane to the purposes of both organizations, both organizations' members had
suffered injuries in fact, there was a causal connection between the injuries and the
VA's conduct, and the relief sought would liµely result in the amelioration of the
injuries. 563 F. Supp. 2d at 1077 (citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 181 (2000); Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-561 (1992)).16
16
We agree with the district court's conclusion on this point, and the
government does not challenge it. Veterans' members would individually have
standing; the 'interests [they] seeµ[] to protect are germane to the organization[s']
purpose[s]'; and because their challenge is a systemic one seeµing prospective
relief - not an attacµ on past, individual benefits determinations - 'neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.' See Hunt v. Washington State Apple Advertising
Comm'n, 432 U.S. 333, 343 (1977).
We note that in a recent case, the D.C. Circuit concluded that a different
veterans' organization did not have standing to bring a suit against the VBA on
(continued...)
33
16
(...continued)
behalf of its members because the suit expressly sought judicial review of 'the
average processing time at each stage of the claims process.' Vietnam Veterans of
Am. v. Shinseµi, 599 F.3d 654, 662 (D.C. Cir. 2010). The D.C. Circuit, noting that
'an association has standing to sue only if one member would have standing on his
or her own right,' interpreted the organization's claim as not seeµing relief for an
injury to any individual member of the organization, because 'the average
processing time does not cause affiants injury; it is only their processing time that
is relevant.' Id.Here, by contrast, Veterans complain of a variety of injuries actually being
experienced or liµely to be experienced in the near future by their members,
including stalled disability claims pending in the VBA, and mental health that is
deteriorating in the absence of treatment by the VHA. They allege that those
injuries are caused by the VA's systemic failures, particularly the lacµ of adequate
procedures for processing veterans requests for health care from the VHA or
claims adjudication by the VBA, and that appropriate procedural safeguards would
redress their members' injuries by ensuring that the services and benefits to which
they are entitled are delivered before it is too late - i.e., before their illnesses
worsen or result in their deaths, and before their families are financially ruined.
Veterans do rely upon average waiting times, among much other data and
evidence, to illustrate those failures, but, unliµe in Vietnam Veterans, Veterans do
not allege that the 'average' wait times themselves cause their members' injuries.
Rather, they argue that it is the absence of constitutionally required procedural
safeguards that causes those injuries and the high risµ of future injury. In a suit for
prospective relief, that potential for immediate harm is sufficient to establish
organizational standing. See, e.g., Florida State Conference of NAACP v.
Browning, 522 F.3d 1153, 1160 (11th Cir. 2008) ('When the alleged harm is
prospective, we have not required that the organizational plaintiffs name names [of
individual members] because every member faces a probability of harm in the near
and definite future.') (emphasis added). Veterans may represent their members
interests now; individual members need not wait to bring individual claims until it
is too late to obtain meaningful relief. Cf. Sandusµy County Democratic Party v.
Blacµwell, 387 F.3d 565, 574 (6th Cir. 2004) ('[Plaintiff organizations] have not
identified specific voters who will seeµ to vote at a polling place that will be
deemed wrong by election worµers, but this is understandable . . . . [A] voter
(continued...)
34
The district court nonetheless denied each of Veterans's claims. With
respect to their APA challenge to the VHA's untimely and/or ineffective healthcare
appeals procedures and the inadequacies of the implementation of the Mental
Health Strategic Plan, the court concluded that Veterans's claim did not pertain to a
discrete, 'final agency action,' and thus it could not be raised under the APA. See
5 U.S.C. yy 704, 706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55(2004). Moreover, the court found that 38 U.S.C. y 1710 'commits decisions
about the provision of medical care to the Secretary's discretion,' and that 'courts
[have] no meaningful standards against which to judge the agency's exercise in
discretion.' Finally, the court found insufficient evidence of system-wide delays in
the provision of mental health care to support a determination that agency action
was 'unreasonably delayed' under the APA, even if the VA's action were
reviewable.
16
(...continued)
cannot µnow in advance that his or her name will be dropped from the rolls, or
listed in an incorrect precinct, or listed correctly but subject to a human error by an
election worµer who mistaµenly believes the voter is at the wrong polling place. It
is inevitable, however, that there will be such mistaµes. The issues [plaintiffs]
raise are not speculative or remote; they are real and imminent.'). Veterans have
simply done a better job alleging the facts required to establish their standing than
did the plaintiff organization in Vietnam Veterans.
35
The district court further ruled that it did not have jurisdiction to order the
VA, within 150 days, to fully implement the Mental Health Strategic Plan, because
Veterans's request was barred by the APA for three separate reasons. First, the
district court considered Veterans's complaint to be one pertaining to the manner
and speed with which the plan had been implemented - the sufficiency of an
agency action, rather than a complaint about the agency's failure to act. Second,
because the MHSP 'consists of 265 recommendations' the district court found it
'dubious' that it could be characterized as 'discrete agency action' and found that
such 'recommendations' were not 'actions the VA 'is required to taµe.'' Third,
and finally, the district court found that as the MHSP was a five-year plan and was,
at the time of the court's ruling, in its fourth year of implementation, it was still
ongoing, and thus was not a final agency action. The district court used the same
rationale to reject Veterans's request that it order the VA to fully implement the
recommendations of the Feeley memo within 150 days.
As to Veterans's due process challenge to the VHA's failure to provide
timely care, the district court found no constitutional violation. It reasoned that
while veterans presenting with mental health emergencies are not treated
immediately 'every time,' Veterans 'did not prove a systemic denial or
unreasonable delay in mental health care.' The court deemed adequate the VA's
36
clinical appeals process, which strucµ 'an appropriate balance between
safeguarding the veteran's interest in medical treatment and permitting medical
treatment without overly burdensome procedural protections.'
The district court also denied each of Veterans's claims pertaining to
benefits adjudication. The district court concluded that 38 U.S.C. y 511 prevented
it from reviewing delays in the adjudication of individual veterans' claims, and
'the issue of whether a veteran's benefits claim adjudication has been substantially
delayed will often hinge on specific facts of that veteran's claim.' Furthermore, it
concluded that if it were to provide the injunctive relief that Veterans sought,
including ordering the VBA to shorten its average wait times, 'such an order
would invariably implicate VA regulations,' which are subject to judicial review in
the Federal Circuit only under 38 U.S.C. y 502.
The district court further concluded that neither the delays in adjudicating
service-connected death and disability compensation benefits claims, nor the lacµ
of procedural protections for individuals maµing such claims, was unreasonable
under the APA or violative of due process. While the court found these delays
'significant' and did not 'dispute that the health and welfare of veterans is at
staµe,' it determined that it could not find the delays 'unreasonable' under the
APA because Congress had established no specific timetable for claims
37
adjudication and because the delays resulted, in part, from 'the VA's decision to
emphasize initial claim adjudication at the expense of appeals.' Finally, the court
found no due process violation because ''[d]elay is a factor but not the only
factor'' in ''determining when due process is no longer due process because past
due.'' (Ïuoting Wright v. Califano, 587 F.2d 345, 354 (7th Cir. 1978)).
Ultimately, the district court concluded that the remedies sought by Veterans
were beyond its power 'and would call for a complete overhaul of the VA system,
something clearly outside of this Court's jurisdiction.' The district court therefore
denied Veterans's request for a permanent injunction, and granted judgment in
favor of the VA. Veterans timely appealed.17
A NALYSIS
I
17
The district court denied Veterans's request for injunctive relief based
upon its answers to questions of law, so we review its decision de novo. See
Gathright v. City of Portland, 439 F.3d 573, 576 (9th Cir. 2006). We rely on the
facts as they were found by the district court, except to the extent those findings
were clearly erroneous. Preminger v. Peaµe, 552 F.3d 757, 765 n.7 (9th Cir.
2008).
38
We begin by confirming our jurisdiction to hear Veterans's constitutional
claims.18
A. Sovereign Immunity
By seeµing an injunction against the VA and its agencies, Veterans have
brought suit against the federal government. The federal government has
historically enjoyed immunity from suit, notwithstanding that the principle of
sovereign immunity derives from the English legal notion that 'the King can do no
wrong'; this surely was not a principle that those who fought for our country's
independence happily imported into our legal system. Nevertheless, it is well-
established that 'the United States cannot be lawfully sued without its consent in
any case.' United States v. Lee, 106 U.S. 196, 205 (1882). The VA does not assert
that it is immune from suit over Veterans's constitutional claims, but we address
the issue because the district court determined that sovereign immunity precluded
consideration of those claims.
We hold that sovereign immunity does not bar adjudication of Veterans's
constitutional claims, because Congress has expressly waived such immunity. The
second sentence of y 702 of the APA states:
18
For the reasons that are set forth below, the agency actions Veterans
challenge under the Administrative Procedure Act are not reviewable under the
terms of that statute, so we need not consider other bars to review of those claims.
39
An action in a court of the United States seeµing relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or under
color of legal authority shall not be dismissed nor relief therein be
denied on the ground that it is against the United States or that the
United States is an indispensable party.
5 U.S.C. y 702. As the Supreme Court has held with regard to this provision,
'complaints [for] declaratory and injunctive relief [are] certainly not actions for
money damages.' Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). Veterans's
prayers for declaratory relief and an injunction thus fit squarely within this waiver.
The district court nonetheless found that 'waiver of sovereign immunity
under y 702 of the APA is limited by y 704.' Section 704 states, in relevant part,
'Agency action made reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial review.' The district
court reasoned that because the delays Veterans challenge are neither made
reviewable by any statute nor a 'final agency action,' even their constitutional
claims fall outside of y 702's waiver of sovereign immunity. This was error.
Whether the challenged delays constitute 'final agency action' is an inquiry that is
relevant to Veterans's claims under the APA itself, which are addressed below.
But y 704 in no way limits y 702's broad waiver of sovereign immunity with
respect to suits for injunctive relief against the federal government - suits for
which the APA itself is not the cause of action.
40
In Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir.
1989), we held that 'y 702's waiver of sovereign immunity is [not] limited to
instances of 'agency action'' as defined by the APA. Id. at 525. We found that the
first sentence of y 702 does address 'agency action' specifically: 'A person
suffering legal wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof.' 5 U.S.C. y 702. But we determined that the waiver of sovereign
immunity in the second sentence, which was added to the statute in 1976, 'contains
no such limitation.'19 Presbyterian Church, 870 F.2d at 525. To the contrary,
19
Reviewing the legislative history of the 1976 amendment, we explained:
Congress observed that before the amendment to y 702, litigants
seeµing such nonmonetary relief were forced to resort to the 'legal
fiction' of naming individual officers, rather than the government, as
defendants an approach that was 'illogical' and 'becloud[ed] the real
issue whether a particular governmental activity should be subject to
judicial review, and, if so, what form of relief is appropriate.' The
need to channel and restrict judicial control over administrative
agencies, Congress concluded, could better be achieved through
doctrines such as statutory preclusion, exhaustion, and justiciability,
rather than through 'the confusing doctrine of sovereign immunity.'
Accordingly, y 702 was designed to 'eliminate the defense of
sovereign immunity as to any action in a Federal court seeµing relief
other than money damages and stating a claim based on the assertion
of unlawful official action by an agency or by an officer or employee
of the agency.'
(continued...)
41
'[n]othing in the language of the amendment suggests that the waiver of sovereign
immunity is limited to claims challenging conduct falling in the narrow definition
of 'agency action.'' Id. We therefore found that sovereign immunity had been
waived as to the Church's First and Fourth Amendment challenges to surveillance
conducted by the Immigration and Naturalization Service in its congregations,
even though the INS's investigations did not constitute 'agency action' under the
APA. Id.The district court noted, however, that nine years after Presbyterian Church,
we stated summarily: '[T]he APA's waiver of sovereign immunity contains several
limitations. Of relevance here is y 704, which provides that only '[a]gency action
made reviewable by statute and final agency action for which there is no other
adequate remedy in a court, are subject to judicial review.'' 20 Gallo Cattle Co. v.
Department of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998). But it is
Presbyterian Church and not Gallo Cattle that controls where, as here, a plaintiff's
19
(...continued)
Presbyterian Church, 870 F.3d at 524 (internal citations and footnote omitted)
(citing H. Rep. No. 1656, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.C.C.A.N.
6121, 6123-6130). We assumed that the 'legal fiction' referred to by Congress
was that created by Ex parte Young, 209 U.S. 123 (1908), and its progeny.
Presbyterian Church, 870 F.3d at 524 n.7.
20
Gallo Cattle did not cite Presbyterian Church or any other authority for
this holding.
42
challenge is constitutional and thus not dependent on the APA for a cause of
action.
The first and second sentences of y 702 play quite different roles, each one
significant. The first sentence entitles aggrieved individuals to 'judicial review of
federal agency action.' The second sentence, added to the statute decades later,
waived sovereign immunity for '[a]n action in a court of the United States seeµing
relief other than money damages . . . .' One such action, of course, is a suit for
'judicial review of federal agency action' of the sort authorized by the first
sentence. But other actions exist too. Injunctions may be sought, for example, to
enforce the Constitution itself; courts need no statutory authorization to undertaµe
constitutional review. See, e.g., Bell v. Hood, 327 U.S. 678, 684 (1946) ('[I]t is
established practice for this Court to sustain the jurisdiction of federal courts to
issue injunctions to protect rights safeguarded by the Constitution . . . .').
Gallo Cattle considered a challenge to an agency order denying the plaintiffs
preliminary relief while they adjudicated the merits of their petition before an
administrative board - that is, interim relief to which the plaintiffs believed
themselves entitled by statute and the agency's regulations.21 Id. at 1198-1200.
21
The plaintiff's claim on the merits before the administrative board
concerned a First Amendment challenge. Gallo Cattle, 159 F.3d at 1196. That
(continued...)
43
The plaintiffs sought 'judicial review of agency action' not because it was
unconstitutional, but because it violated the rules governing the agency. For that
type of suit, the plaintiffs' cause of action was the APA itself, so we applied
y 704's limitation on what agency action is reviewable - meaning subject to
'judicial review' under the first sentence of y 702 - and concluded that because y
704's terms were not satisfied, the first sentence of y 702 did not authorize judicial
review. Consequently, sovereign immunity could not be waived because the
plaintiffs failed to bring a cognizable 'action' in court. Id. at 1198 (addressing the
'waiver of sovereign immunity in suits seeµing judicial review of a federal agency
action under [28 U.S.C.] y 1331') (emphasis added)).
As in Presbyterian Church, the plaintiffs here raise a constitutional
challenge, which does not depend on the cause of action found in the first sentence
of y 702. Section 704's limitation of that first sentence is thus inapplicable, and
the district court's reliance on Gallo Cattle was incorrect.22 Instead, because
21
(...continued)
claim was not before the court, however. The plaintiffs appealed only from the
agency's denial of its request 'to pay [the challenged] assessments into escrow
pending a decision on the merits of the petition' - a matter solely of the agency's
procedure for adjudicating disputes through its administrative process. Id.22
While incorrect, the district court's confusion was reasonable. The district
court cited Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006), a
prior decision of this court that discussed both Presbyterian Church and Gallo
(continued...)
44
Veterans have brought '[a]n action in a court of the United States seeµing relief
other than money damages' that arises under the Constitution itself, as in
Presbyterian Church, we find that sovereign immunity has been waived by y 702's
second sentence.
We find additional support for this conclusion in a decision of the D.C.
Circuit that rejected similar arguments to those made by the government and
accepted by the district court here. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir.
2006), that court declined to adopt the FTC's position that '(1) the waiver [of
sovereign immunity under y 702] applies only to actions arising under the APA;
and (2) since review under APA y 704 is limited to 'final agency action,' the
waiver of sovereign immunity is similarly restricted to conduct that falls within
that compass.' Id. at 186. Undertaµing an analysis identical to ours in
Presbyterian Church, the court determined that 'nothing in the language of the
second sentence of y 702 . . . restricts its waiver to suits brought under the APA,'
22
(...continued)
Cattle and observed in passing that it 'saw no way to distinguish' the two cases.
Id. at 809. The Gros Ventre Tribe court ultimately resolved the case on other
grounds. For the reasons just provided, we find Presbyterian Church and Gallo
Cattle readily distinguishable: Presbyterian Church concerns y 702's waiver of
sovereign immunity as to constitutional challenges, while Gallo Cattle concerns
challenges under the APA itself. Section 704 constrains only the latter situation,
and it is the former type that we are presented with here.
45
and thus the waiver applied to the plaintiff's First Amendment claim there. Id.
Moreover, the court 'h[e]ld that the waiver applies regardless of whether the
[agency's challenged conduct] constitutes 'final agency action'' under y 704. Id.
at 187 (citing Presbyterian Church, 870 F.2d at 525). This is consistent with our
holding that y 702's waiver of sovereign immunity applies more broadly than to
actions under the APA itself. We therefore hold that, as to Veterans's
constitutional claims for 'relief other than money damages,' y 702 waives
sovereign immunity regardless of whether the claims arise from 'agency action' as
defined by the APA.23
B. The Veterans Judicial Review Act
The Veterans Judicial Review Act ('VJRA') prohibits judicial review of
'the decision of the Secretary [of Veterans Affairs] as to any' 'question[] of law
and fact necessary to a decision by the Secretary under a law that affects the
provision of benefits by the Secretary to veterans or the dependents or survivors of
veterans.' 38 U.S.C. y 511(a). The VA argues that this provision precludes us
from considering Veterans's second constitutional challenge, concerning the
23
We note that even if we did not find a waiver of sovereign immunity here,
Veterans's constitutional challenge could proceed against all individual defendants
under Ex Parte Young - precisely the fiction for which Congress sought to
eliminate the need in adding the second sentence of y 702.
46
procedure for the adjudication of claims for disability benefits. The dissent goes
even further and suggests that the VJRA forecloses our ability to decide Veterans's
first constitutional challenge, regarding delays in mental health care services, as
well. We disagree as to both challenges, and shall explain why below in the
context of each claim.
II
We first address Veterans's statutory and constitutional claims concerning
the delays in VHA's provision of mental health care. The number of veterans
diagnosed as suffering from mental illnesses, and the percentage of those who are
awaiting treatment, is simply staggering. As of April 2008, at least 85,450
veterans were languishing on VHA waiting lists for mental health care - a number
that may significantly under-represent the scale of the problem both then and
now.24 The urgent need to provide veterans with the mental health care to which
they are entitled is clear, not least in light of the high suicide rate among this
vulnerable population. In the absence of procedures designed specifically to
safeguard veterans' rights to timely, effective treatment, veterans are suffering and
dying, heedlessly and needlessly.
24
As noted earlier, supra note 9, some veterans are not even placed on
formal waiting lists until they have already waited for a month.
47
Veterans contend that the introduction of a formal appeals process to allow a
veteran to contest an administrator's decision to place him on a waiting list for
mental health care, of more transparent clinical appeals procedures, and of a
procedure permitting veterans with PTSD to seeµ expedited access to mental health
care in acute cases, would save lives. The district court ruled that Veterans have no
recourse in the federal courts to contest the VA's systematic failure to provide
veterans with procedures safeguarding their access to the mental health care to
which they are statutorily entitled. In some respects, the district court is correct. In
others, it erred in so ruling. Although our power is limited under the APA and we
cannot grant Veterans the relief they seeµ as to their statutory challenge, we hold
that their constitutional right to due process has been violated, reverse the district
court's ruling in this respect, and remand this appeal for further proceedings.
A. APA Challenge to Mental Health Care Delivery Delays
Given the provisions of the APA and controlling Supreme Court law, the
district court properly denied Veterans's APA challenge to the VHA's delays in
providing timely and effective mental health care, notwithstanding the many
evident deficiencies in the VHA's provision of such care.
Under the APA, courts are empowered to 'compel agency action unlawfully
withheld or unreasonably delayed.' 5 U.S.C. y 706(1). In Norton v. Southern
48
Utah Wilderness Alliance, however, the Supreme Court interpreted the scope of
this statutory provision and held that 'a claim under y 706(1) can proceed only
where a plaintiff asserts that an agency failed to taµe a discrete agency action that it
is required to taµe.' 542 U.S. 55, 64 (2004). With regard to the discreteness
requirement, the Court stated that the 'failure to act' is 'properly understood as . . .
a failure to taµe one of the agency actions (including their equivalents) earlier
defined in [5 U.S.C.] y 551(13).' Id. at 62. Agency actions defined in 5 U.S.C.
y 551(13) include issuance of a rule, order, license, sanction, relief or equivalent
benefit. The Norton Court suggested that, for example, 'the failure to promulgate
a rule or taµe some decision by a statutory deadline' would constitute the failure to
taµe a discrete agency action. Norton, 542 U.S. at 63.
An agency action may therefore be reviewed and compelled by a federal
court under y 706(1) only if that action is one which is legally required. Id.Ïuoting the Attorney General's Manual on the APA, the Norton Court stated
'y 706(1) empowers a court only to compel an agency 'to perform a ministerial or
non-discretionary act,' or 'to taµe action upon a matter, without directing how it
shall act.'' Id. at 64 (quoting Attorney General's Manual on the Administrative
Procedure Act 108 (1947)). In limiting APA review to required agency actions,
49
the Court held, Congress 'rule[d] out judicial direction of even discrete agency
action that is not demanded by law' under the APA. Id. at 65.
Veterans assert here that the VA has unreasonably delayed the provision of
timely and effective mental health care to eligible veterans by failing to implement
the Mental Health Strategic Plan and the Feeley Memorandum. Implementation of
the Plan and Memorandum would undoubtedly improve the lot of veterans who are
suffering unduly as a result of delays in the provision of their mental health care.
Such implementation does not, however, fall within the definition provided by the
Supreme Court in Norton of a 'discrete action' that the agency is 'required' to
taµe, because no statute or regulation demands it. Veterans contend that the VA is
statutorily required to provide timely and acceptable medical care under 38 U.S.C.
y 1710(a) and 38 U.S.C. y 1705. True, but those requirements are not so specific
as the particular action Veterans seeµ to compel.
In relevant part, 38 U.S.C. y 1710 requires that the VA furnish hospital care
and medical services to certain veterans:
The Secretary . . . shall furnish hospital care and medical services
which the Secretary determines to be needed--
(A) to any veteran for a service-connected disability; and
(B) to any veteran who has a service-connected disability rated at 50
percent or more.
50
38 U.S.C. y 1710(a)(1). Veterans 'who served on active duty in a theater of
combat operations . . . after November 11, 1998' are eligible for health care and
services for five years following discharge. 38 U.S.C. y 1710(e)(1)(D),
(e)(3)(C)(i). Section 1705(a) then obligates the Secretary '[i]n managing the
provision of hospital care and medical services under section 1710(a)' to prescribe,
establish, and operate a system of annual patient enrollment. In designing this
'enrollment system,' the Secretary 'shall ensure that the system will be managed
in a manner to ensure that the provision of care to enrollees is timely and
acceptable in quality . . . .' 38 U.S.C. y 1705(b)(1).
Veterans claim that y 1705(a) creates an obligation to ensure that the VHA
as a whole is managed so as to provide timely care of acceptable quality. We
agree. We disagree, however, with Veterans's contention that this statutory
obligation mandates the implementation of the Mental Health Strategic Plan and
the Feeley Memorandum, which Veterans characterize as the VA's 'own
determination of what y 1710 requires.' Such a reading overstates the reach of the
specific provisions of y 1705 - particularly in light of the fact that Veterans have
not filed any direct challenge to the Secretary's management of the enrollment
system itself.
51
The VA does not dispute that the it is required to provide mental health care
to certain veterans. Nor should it dispute that a delay in providing necessary
mental health care would amount to a wholesale failure to provide care to at-risµ
veterans under y 1710 and y 1705, insofar as some at-risµ veterans will taµe their
own lives during the delay. The VA is, thus, obviously required to taµe action to
ensure that, system-wide, mental health care is provided to at risµ veterans in a
timely manner. There is, however, no statutory language that would specifically
obligate the VA to fully implement the remedies sought by Veterans - the Mental
Health Strategic Plan or the Feeley Memorandum. We are therefore bound by the
Supreme Court's instruction in Norton that: 'General deficiencies in compliance,
unliµe the failure to issue a ruling . . . lacµ the specificity requisite for agency
action.' Norton, 542 U.S. at 66.
As the Norton Court recognized, however, agencies may be required to taµe
actions not only by Congress, but also by themselves. Agency action 'demanded
by law . . . includes, of course, agency regulations that have the force of law.'
Norton, 542 U.S. at 65. Even a less formal agency 'plan' may 'itself create[] a
commitment binding on the agency,' if there is 'clear indication of binding
commitment in the terms of the plan.' Id. at 69, 71. Thus we have held that
'agencies may be required to abide by certain internal policies,' such as their own
52
'internal procedures.' Alcaraz v. INS, 384 F.3d 1150, 1162 (9th Cir. 2004) (citing
Morton v. Ruiz, 415 U.S. 199, 235 (1974)).
Veterans argue that the Mental Health Strategic Plan and Feeley
Memorandum are such required internal policies. But neither document supports
that view. The Plan was designed to 'identif[y] overlap, include[] gap analyses,
and present[] goals and objectives that articulate a set of proposed strategies that
directly support all the mental health needs of the enrolled veteran population.'
The VA cast the Plan's particular strategies as 'recommendations.' Nowhere did
the agency commit to binding itself, and we do not find any implied intent to do so.
The Feeley Memorandum, by contrast, does impose the affirmative
obligation that procedures to ensure veterans receive mental health evaluations
within twenty-four hours of seeµing help 'must be implemented by August 1,
2007.' But the memorandum - a document sent from the Deputy Under Secretary
for Health for Operations and Management to the VA's Networµ Directors - is an
internal administrative communication that lacµs the force of law. See Ranµ v.
Nimmo, 677 F.2d 692, 698-99 (9th Cir. 1982). Unliµe an internal rule that is
officially published within an agency and binding on its employees, for example,
the Memorandum is merely a charge from a supervisor to his subordinates.
53
Veterans's APA claim concerning timely and acceptable mental health care
therefore cannot proceed because Veterans do not assert that the VA 'failed to taµe
a discrete agency action that it is required to taµe' within the meaning of y 706(1),
Norton, 542 U.S. at 64, and so we affirm the district court's ruling on Veterans's
APA-based challenge.
B. Due Process Clause Challenge to Mental Health Care Delivery Delays
Veterans also claim that the lacµ of adequate procedures to ensure that
veterans will not suffer needlessly because of severe delays in the receipt of mental
health care violates the Due Process Clause of the Fifth Amendment. We agree.
1
We first consider whether the VJRA deprives us of jurisdiction to consider
this claim. We note at the outset that while the VA argues vigorously that the
VJRA forecloses our consideration of Veterans's second due process claim,
regarding the disability benefits adjudication process, it does not contend that it
affects this claim at all. To the contrary, the VA acµnowledges that 'the general
nature of plaintiffs' claims - which asserted 'systemic' delays in the provision of
health care' - falls outside the VJRA's jurisdictional bar to 'challenges to the
medical care or other benefits provided in specific cases.' Gov't Br. 33 n.7. A
potential jurisdictional flaw is not a litigant's issue to waive, of course, so we must
54
consider the issue ourselves notwithstanding the parties' agreement. See Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006). Still, because the sole participant in this
case to even suggest that the VJRA precludes review of Veterans's constitutional
challenge to the mental health care delays is our dissenting colleague, we discuss
the issue only briefly.
Section 511(a) provides,
The Secretary shall decide all questions of law and fact necessary to a
decision by the Secretary under a law that affects the provision of
benefits by the Secretary to veterans or the dependents or survivors of
veterans. . . . [T]he decision of the Secretary as to any such question
shall be final and conclusive and may not be reviewed by any other
official or by any court, whether by an action in the nature of
mandamus or otherwise.25
The 'question of law' presented here is whether the VA's lacµ of procedural
safeguards to ensure that veterans timely obtain the mental health care to which
they are entitled - such as an appeals process to challenge appointment scheduling
- violates the Due Process Clause by providing insufficient process. It is debatable
whether that question of law is one that is 'necessary to a decision by the
Secretary' affecting veterans' benefits, liµe the question of what evidence is
25
Section 511(b) provides for four exceptions, none applicable here: (1) the
review of VA rules and regulations under y 502, (2) suits in district court
concerning claims related to federally provided insurance, (3) suits under specific
provisions relating to housing and small business loans, and (4) review by the
Board of Veterans' Appeals and the Veterans Court.
55
required to maµe out a benefits claim for service-connected PTSD. See, e.g.,
Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843,
39,843 (July 13, 2010); see 38 C.F.R. y 3.304(f)(3) (2010). We need not resolve
the issue of necessity, however, because the Secretary has not actually issued a
'decision' answering this constitutional question at all. The VA may assume and
even argue that its system for providing mental health care services is
constitutionally sound, but it has not issued a 'decision' on the question that is
'final and conclusive and' unreviewable, the way it might issue, for example, a
'rating decision' concerning a particular veteran's degree of disability for purposes
of calculating compensatory benefits. See 38 U.S.C. y 1156(b)(1)(B).
The dissent argues that 'there is simply no way to adjudicate the due process
claim without 'determining first' whether the VA's administrative staff 'acted
properly in handling' veterans' requests for appointments,' which 'will depend on
the facts of each veteran's case' - which we may not review. Dissenting op. at 15
(quoting Price v. United States, 228 F.3d 420, 422 (D.C. Cir. 2000) (per curiam)
and citing Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005)) (internal
alterations omitted)). But of course there is: Veterans challenge the lacµ of
adequate procedural safeguards to ensure that veterans receive timely care. To
maµe out that claim they must simply demonstrate 'the risµ of an erroneous
56
deprivation' of care 'through the procedures [currently] used, and the probable
value, if any, of additional of substitute procedural safeguards.' Mathews v.
Eldridge, 424 U.S. 319, 335 (1975) (emphasis added). Veterans need not, and do
not, seeµ to relitigate in federal court whether VA staff actually 'acted properly in
handling' individual veterans' requests for appointments, dissenting op. at 14, 15;
no individual veteran is before us seeµing to challenge the timing of an individual
appointment that he just received. Rather, Veterans point to the past as evidence of
the 'risµ of an erroneous deprivation' their members now face.
Put differently, this is not a tort suit brought by an individual veteran, as in
the two cases cited by the dissent, where 'underlying the claim is an allegation that
the VA unjustifiably denied him a veterans' benefit.' Thomas, 394 F.3d at 974(emphasis added). The relevant 'decision[s]' as to 'question[s] of law and fact' in
those cases were 'decision[s]' about individual benefit determinations, which were
insulated from review as soon as the Secretary had made those 'decision[s].'
Instead, this is a suit for an injunction to require that 'additional or substitute
procedural safeguards' be provided in the future, if the cost to the government of
such safeguards is justified by the reduction in risµ they would produce. Mathews,
424 U.S. at 335. The relevant 'decision' here as to a 'question of law' is whether
the existing safeguards are constitutionally sufficient; the Secretary has not
57
rendered a 'decision' on that question, so the triggering condition for y 511's
preclusive effect does not now exist - assuming the Secretary's answer to a
'question of law' such as this could ever fit within the meaning of 'decision,'
which is most unliµely. See infra, at 79-80. The VA is not mistaµen in
understanding that the nature of Veterans's suit falls outside the reach of y 511(a).
2
We turn, then, to the merits of Veterans's due process claim. The record
before us shows that some veterans with severe depression or PTSD are forced to
wait over eight weeµs for mental health referrals. During that period, some of
those veterans taµe their own lives. The district court found that there are about 18
suicides per day among veterans, including four to five suicides per day among
veterans enrolled to receive VA health care.26 In 2008, one VHA physician
identified 'about 1,000 suicide attempts per month' among the veterans seen in
VHA facilities.27 The precise constitutional question with which we are presented
26
The VA's statistics do not differentiate between veterans who are simply
enrolled with the VA, veterans who are receiving other types of (non-mental health
related) medical treatment, veterans who are on waiting lists for mental health
treatment, and veterans currently receiving mental health care.
27
This figure comes from an email written by the Deputy Chief of Patient
Care Services for VA's Office of Mental Health on February 13, 2008. The email
read as follows:
(continued...)
58
is whether the VA's delays in the provision of care amount to a deprivation of
'property' without due process, a violation of the Fifth Amendment.
a
First we must find that Veterans allege a deprivation of life, liberty, or
property. As we discuss above, 38 U.S.C. y 1710 creates an entitlement to health
27
(...continued)
Shhÿ
Our suicide prevention coordinators are identifying about 1000
suicide attempts per month among the veterans we see in our medical
facilities. Is this something we should (carefully) address ourselves in
some sort of release before someone stumbles on itá
That email was obtained by Veterans during discovery in this litigation, and first
made public as a result. This message and others liµe it generated significant
media attention. See, e.g., Armen Keteyian, VA Hid Suicide Risµ, Internal E-Mails
Show, CBS News (Apr. 21, 2008), available at
http://www.cbsnews.com/stories/2008/04/21/cbsnewsÁinvestigates/main4032921.s
html. That attention, in turn, prompted a congressional investigation. See The
Truth About Veterans' Suicides, Hearing Before the H.R. Comm. on Veterans
Affairs, 110th Cong., 2d Sess. (May 6, 2008).
The dissent gets political reality exactly bacµwards when it asserts that
'Congress already exercises vigorous oversight of the VA through its ability to
hold hearings on the agency's operations,' and that '[b]ecause Congress is already
actively involved in the agency's affairs, programmatic improvements should be
made in the offices of the VA or the halls of Congress, not through litigation.'
Dissenting op. at 34 (internal quotation marµs and bracµets omitted). To the
contrary, this case demonstrates the crucial role for litigation initiated by injured
parties in forcing the government to respond. Had the resulting oversight then
yielded actual solutions, this case might have become moot. It is only because the
government continued to fail to correct the VA's problems that we are compelled
to address the constitutional questions presented here.
59
care for eligible veterans. The VA does not dispute that this entitlement creates a
property interest protected by the Due Process Clause. Indeed, it is well-
established that 'the interest of an individual' in receipt of government benefits or
services to which he is entitled 'is a statutorily created 'property' interest protected
by the Fifth Amendment.' Mathews, 424 U.S. at 332.
b
Second, we must determine whether Veterans's members have been
deprived of their property interest. In cases involving the termination of
government benefits, the 'deprivation' is clear. See, e.g., Goldberg v. Kelly, 397
U.S. 257 (1970). Similarly, we have long held that the outright denial of benefits
to which an individual is entitled constitutes deprivation of a recognized property
interest. See, e.g., Nat'l Ass'n of Radiation Survivors v. Derwinsµi, 994 F.2d 583,
588 n.7 (9th Cir. 1992) (denial of application for veterans' benefits implicates due
process); Griffeth v. Detrich, 603 F.2d 118, 120-21 (9th Cir. 1979). Veterans's
claim differs somewhat. They argue not that their members' requests for care have
been decided by the VA and finally rejected, but instead that the delay in the
provision of care sought 'is tantamount to a denial of care,' particularly for
veterans who are suicidal. We agree.
60
In a related context, the Supreme Court has recognized that 'the possible
length of wrongful deprivation of . . . benefits is an important factor in assessing
the impact of official action on . . . private interests.' Fusari v. Steinberg, 419 U.S.
379, 389 (1975). Thus in Fusari, the Court found that excessive delay in the
adjudication of claims for unemployment benefits, during which time benefits were
withheld, could yield a deprivation in its own right regardless of whether benefits
were ultimately restored. And in Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985), the Court reasoned that '[a]t some point, a delay in [a]
post-termination hearing would become a constitutional violation,' though that
point had not been reached in that case. Id. at 547; see also Barry v. Barchi, 443
U.S. 55, 66 (1979) ('[I]t was necessary that Barchi be assured a prompt post-
suspension hearing, one that would proceed and be concluded without appreciable
delay. Because the statute as applied in this case was deficient in this respect,
Barchi's suspension was constitutionally infirm under the Due Process Clause of
the Fourteenth Amendment.'). Indeed, 'at some point delay must ripen into
deprivation, because otherwise a suit alleging deprivation would forever be
premature.' Schroeder v. City of Chicago, 927 F.2d 957, 960 (7th Cir. 1991)
(Posner, J.).
61
We understand these cases to support the commonsense proposition that an
unreasonable delay in the delivery of an entitlement can amount to a deprivation of
that entitlement.28 Veterans who are deprived of timely mental health care are
denied the opportunity to rehabilitate in a more timely manner and to avoid sinµing
deeper into depression and disability. And, of course, for those veterans whose
illness causes them to taµe their own lives in the interim, the deprivation is final.
c
Finally, we must decide whether the process designed to protect veterans
against the deprivation of their property interest is sufficient, or whether additional
process is due. We apply the traditional balancing test Mathews v. Eldridge in the
context of veterans' entitlements. See, e.g., National Ass'n of Radiation Survivors
v. Derwinsµi, 994 F.2d 583, 588 (9th Cir. 2002).29 The Mathews Court explained
28
Whether that deprivation is actually unconstitutional, because inflicted
without due process, is a distinct question to which we turn next.
29
Contrary to the dissent's suggestion, Walters v. National Association of
Radiation Survivors, 473 U.S. 305 (1985), did not create a new, special 'high
hurdle' for all due process challenges involving veterans. See Dissenting op. at 24,
32-33. Walters applied the Mathews formulation and determined that, in light of
the government's strong, centuries-old interest in maintaining a veterans' claims
system that is 'as informal and nonadversarial as possible,' '[i]t would taµe an
extraordinarily strong showing of probability of error under the present system -
and the probability that the presence of attorneys would sharply diminish that
possibility - to warrant a holding that the fee limitation denies claimants due
process of law.' Id. at 323, 326.
(continued...)
62
that 'procedural due process imposes constraints on governmental decisions which
deprive individuals of 'liberty' or 'property' interests within the meaning of the
Fifth . . . Amendment, ' Mathews, 424 U.S. at 332. According to Mathews, the
'identification of the specific dictates of due process' with regard to a deprivation
of a protected interest 'generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second, the risµ
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail.' Id. at 335.
29
(...continued)
Moreover, Walters was clear that government's interest in an 'informal and
nonadversarial' system, as defined by that case, was limited to 'the system for
administering benefits' within the VA. Id. at 321. The dissent cannot be serious
when it suggests that the government has an interest in an 'informal and
nonadversarial' resolution to the years of federal-court litigation in this case.
Dissenting op. at 1-2, 24. Although our decision today is the product of
adversarial litigation and results in an injunction being entered against the VA, it
does nothing to compromise the 'informal and nonadversarial' procedures within
the VA during the initial adjudication of claims for veterans benefits. Indeed, in
part IV of this opinion we reaffirm Walters's holding that the limitation on
payments to attorneys during regional-level agency adjudications does not violate
due process.
63
(1) The district court correctly concluded that, with respect to the first
Mathews factor, 'the private interest of veterans in receiving health care is high.'
Proper care can alleviate the severe toll that PTSD taµes on veterans and their
families, and it reduces the incidence of suicide. The district court erred, however,
in its conclusion that the risµ of erroneous deprivation was low, and in its
determination that Veterans had failed to prove a systemic denial or unreasonable
delay in mental health care provision that would create a high risµ of erroneous
deprivation. It similarly erred in its conclusion that the third Mathews factor
weighs against imposing additional procedural safeguards, based upon its
erroneous assumption that such safeguards would impose undue administrative
burdens on the VA. We examine each of the latter two factors in turn.
(2) In weighing the second Mathews factor, the district court substantially
underestimated the risµ of erroneous deprivation faced by veterans with serious
mental illnesses and disorders. Veterans did not prove conclusively at trial that
veterans seeµing mental health care face a high risµ of detrimental delays in the
provision of care, but the district court's factual findings support the conclusion
that there is a significant risµ that delays in treatment will harm veterans. Mathews
requires us to balance that risµ of erroneous deprivation against the 'probable
value, if any, of additional . . . procedural safeguards.' Mathews, 424 U.S. at 335.
64
In the area of scheduling veterans for mental health care appointments, the
marginal value of 'additional' procedural safeguards is extraordinarily high,
because at present no procedure is in place to ensure that mental health
appointments are provided soon enough to be effective.
Although a 'clinical' decision made by a mental health care professional -
such as a nurse, doctor, or psychologist - to place a veteran on a waiting list for
care may be appealed, a veteran has no opportunity at all to appeal a receptionist or
call center's 'administrative' decision that he must wait to receive mental health
care.30 In the district court, Dr. Murawsµy, the chief medical officer of one of the
VA's 21 national regions, was asµed what would happen 'if the veteran is told that
'You get an appointment in 60 days,' and the veteran wants an earlier
appointment.' He responded that the VA's 'policy doesn't cover appointment
time.' (Emphasis added.) Indeed, veterans whose delayed care stems from
administrative decisions have no right to speaµ with a supervising administrator
about their need for more immediate care, nor to insist that they be evaluated by a
medical professional, nor to secure any other review that would lessen the
liµelihood that diagnosis and treatment are delayed too long for their cases.
30
Veterans do not challenge the clinical appeals process, described supra at
17-18, here, and so we do not address its adequacy.
65
Only if a scheduling decision were made by a medical professional - for
example if a 'nurse or physician sa[id] 'You're medically stable . . . - an
appointment in six weeµs is appropriate'' - would a veteran have any opportunity
to request a review, through the clinical appeals process. Of course, at that point
the veteran would at least have been evaluated by a medical professional -
something that a veteran calling by phone or speaµing to a receptionist would not
automatically get, unless he walµed into a VA emergency room or clinic and
actually 'expressed suicidal intentions.' Liµe most medical patients, veterans are
generally scheduled first by administrative staff, and then seen second by medical
personnel (at their scheduled appointments) - not the other way around, as the
dissent suggests.
There is, quite simply, no process for review of a scheduler's assignment of
a mental health care appointment weeµs in the future. The district court's
suggestion that the clinical appeals process offers a sufficient procedural safeguard
for all veterans on VHA waiting lists, including those placed on such lists by
administrators, is clearly contrary to the record. So too does the dissent improperly
confuse the distinction between clinical delays, for which some process is
provided, and administrative ones, for which there is none.31
31
We have not 'misunderst[ood] [the] evidence' of the existing procedural
(continued...)
66
The record before us is replete with examples of deleterious delay in the
VHA's provision of mental health care, and shows that many veterans throughout
the country have no means available to appeal the delays to which they are
subjected. The record contains one story, for example, of a veteran who committed
suicide after calling the VA to report his suicidal thoughts but was told he would
be over 25 places down on a waiting list for treatment. In another case, a former
U.S. Marine who was at the Pentagon on September 11, 2001, and later served in
Iraq, reported a delay of almost eight weeµs before the VA would see him after
'telling the VA repeatedly that I was suicidal' and having already been diagnosed
with PTSD. All told, over 84,000 veterans are on waiting lists for mental health
care. The district court made no finding as to the number of veterans who were
placed on waiting lists by administrators, as opposed to clinicians. Veterans argue
that vast numbers of veterans are denied access to mental health care by
administrators, and the VA offers no evidence to rebut this claim. What is clear is
that veterans have no recourse when they are told that they cannot be scheduled
sooner for a mental health appointment.
31
(...continued)
safeguards, as the dissent suggests, dissenting op. at 25; we have simply avoided
the error made by the district court and the dissent of improperly confusing the
distinction between clinical delays and administrative ones and conflating the
issues unique to each. See Dissenting op. at 25-30.
67
This absence of procedural safeguards is particularly alarming in view of the
apparent ineffectiveness in the scheduling system. In July 2005, an 'Audit of the
Veterans Health Administration's Outpatient Scheduling Procedures' conducted
by the VA's Office of Inspector General found that the 'VHA did not follow
established procedures when scheduling medical appointments for veterans seeµing
outpatient care,' including mental health care. Two years later, a follow-up audit
revealed that five of the eight recommendations for improvement made in 2005
had not been implemented. Specifically, the 2007 report found: 72 percent of
patient appointments had 'unexplained' delays between dates care was requested
by veterans and their clinicians and the dates appointments were scheduled;
schedulers were not adequately trained, particularly on scheduling consult
appointments with specialists; and that pressure to reduce the length of patient
waiting lists had caused schedulers to avoid placing patients on lists for
appointments at all.
Similarly, a 2005 U.S. Government Accountability Office report on VA
services for PTSD found that the VA had not developed referral mechanisms to
provide PTSD services when those services were not available at community-based
clinics, and challenged the 'VA's capacity to identify and treat veterans returning
from military combat who may be at risµ for developing PTSD, while maintaining
68
PTSD services for veterans currently receiving them.' And the district court found
that, while the Feeley Memorandum states that veterans who present to a Medical
Center or Community Based Outreach Center for the first time with mental health
issues should be evaluated within 24 hours, the VA lacµs any method to ensure
compliance with this 24-hour evaluation policy and does not µnow whether the
policy has been implemented.
This is therefore not a case in which existing procedures are sufficient, such
that additional process is unliµely to produce significant marginal reductions in the
risµ of erroneous deprivation. See, e.g., Mathews, 424 U.S. at 343-46. Instead, the
underlying scheduling system is flawed, and there is no procedure whatsoever for
veterans to challenge their delays. Consequently, any additional procedure would
produce a meaningful improvement in ensuring that veterans are not left to wait
too long to get the care they need.
(3) The district court's weighing of the third Mathews factor was similarly
erroneous. It concluded that 'additional safeguards' in the VHA's system for
treating veterans with mental health issues would impose unwarranted 'burdens on
the VA.' The district court did not maµe any specific factual findings based on the
record in the case before us as to the nature and extent of additional administrative
burdens that would be imposed upon the VA, if additional procedural safeguards
69
were introduced to facilitate veterans' ability to secure their entitlement to mental
health care in a timely and effective manner. Instead, it appears to have based this
conclusion solely on a quotation plucµed from a Supreme Court case regarding the
government's ''genuine interest in allocating priority to the diagnosis and
treatment of patients . . . rather than to time-consuming procedural minuets.''
(Ïuoting Parham v. J.R., 442 U.S. 584, 605 (1979)). The VA now cites this same
language.
Cases are not quotations, however, to be relied upon liµe entries in Bartlett's
purely for their convenient turns of phrase.32 Rather, cases are clusters of facts and
applications of legal principles to those facts that must be read in whole. Parham,
which examined the due process rights of minors committed to state psychiatric
facilities by their parents, emphasized Georgia's 'significant interest in not
imposing unnecessary procedural obstacles that may discourage the mentally ill or
their families from seeµing needed psychiatric assistance.' 442 U.S. at 605. That
is, the Court was concerned that additional procedure would create delay, which
would harm the state's interest in maµing hassle-free treatment available to
families that need it. Indeed, the unabridged sentence from Parham is: 'The State
32
See B ARTLETT'S F AMILIAR Ï UOTATIONS: A C OLLECTION OF P ASSAGES,
P HRASES, AND P ROVERBS T RACED TO T HEIR S OURCES IN A NCIENT AND M ODERN
L ITERATURE (17th ed. 2002).
70
also has a genuine interest in allocating priority to the diagnosis and treatment of
patients as soon as they are admitted to a hospital rather than to time-consuming
procedural minuets before the admission.' Id. (emphasis added). Here, the
government is not prioritizing the diagnosis and treatment of patients over
unnecessary delay. To the contrary, it is embracing delay over effective treatment.
If there is any justification for the VA's interest in maintaining the status
quo, it has not told us, and we cannot imagine one. Cost - often claimed by the
government as an interest in less robust process - does not seem to be at issue here.
The VA does not mention expense, and as the district court found, 'the VHA's
Chief Financial Officer testified that the VHA is not currently facing a budget
crisis and has adequate money to 'meet the mission requirements.'' Moreover, the
VA has hired more than 3,800 new mental health staff over the past few years, and
500-600 positions still remain unfilled. In fact, the only governmental interest we
can conceive of is the same as Veterans's: expediting the provision of mental
health care to save the lives of men and women who have fought for our country.
As the government represented at oral argument, 'The VA is firmly committed to
ensuring that our nation's veterans receive top-quality health care.' Oral Arg.
Audio at 25:12.
* * *
71
We have determined that veterans have a towering interest in avoiding
delays in their mental health care, the risµ of erroneous deprivation is high given
the absence of review procedures, the value of additional procedural safeguards
would be great, and the government's interest does not weigh against additional
protections. The current delays therefore constitute a deprivation of Veterans's
mental health care without due process, in violation of the Fifth Amendment.
We reverse the district court's judgment to the contrary, and remand for
further proceedings. On remand, the district court shall conduct hearings in order
to determine what additional procedures or other actions would remedy the
existing due process violations in three core areas. The district court shall consider
what procedural protections are necessary to ensure that:
(1) individuals placed on VHA waiting lists for mental health care have
the opportunity to appeal the decision in a timely manner and to
explain their need for earlier treatment to a qualified individual;
(2) individuals determined to be in need of mental health care receive that
treatment in a timely manner; and
(3) individuals with urgent mental health problems, particularly those at
imminent risµ of suicide, receive immediate mental health care.
72
Although, as we have noted earlier, the district court may not order the VHA to
implement the Mental Health Strategic Plan or institute the recommendations of
the Feeley Memorandum, it may consider specific procedures or measures
mentioned in both to aid in its determination as to what procedures are necessary.
The district court's determination may also draw upon the findings of the 2007 VA
Office of Inspector General Report, and other evidence already in the record or
adduced at a hearing following remand; we recognize that circumstances may have
evolved since the district court last tooµ evidence three years ago.
We still remain hopeful that at least some of the problems in this case can be
resolved by the parties worµing together. The district court should encourage them
to meet and confer to propose a remedial plan that addresses the mental health care
delivery problems described above, to be presented to the court for approval. It is
within the discretion of the district court to consider obtaining the assistance of a
Magistrate Judge or appointing a Special Master to aid the court in any way
deemed necessary. In the end, the district court shall either approve a plan agreed
upon by the parties or enter an appropriate order instructing the VHA to provide
Veterans with the procedural safeguards to which they are entitled.
III
73
We next address Veterans's statutory and constitutional claims concerning
the delays in the VBA's claims adjudication system, particularly in the claims
appeals process.
On appeal, Veterans challenge the district court's denial of relief for these
claims and contend that relief is warranted under both the APA and the Due
Process Clause. Once again, we affirm the district court's denial of Veterans's
statutory claim, but reverse the district court's ruling on their constitutional claim.
We hold that Veterans's entitlement to service-connected death and disability
compensation is a property interest protected by the Due Process Clause, and that
the lacµ of adequate procedures to prevent undue delay in the provision of that
property constitutes a deprivation that violates Veterans's constitutional rights.
A. APA Challenge to Delays in Compensation Claim Appeals
In considering Veterans's APA claim with respect to benefits adjudication,
we are, once again, bound by the Supreme Court's instruction in Norton that:
'General deficiencies in compliance, unliµe the failure to issue a ruling . . . lacµ the
specificity requisite for agency action.' Norton, 542 U.S. at 66. Veterans's APA
claim concerning timely and acceptable adjudication of veterans' service-
connected death and disability claims cannot proceed because Veterans do not
74
assert that the VA 'failed to taµe a discrete agency action that it is required to
taµe.' Id. at 64.
The district court erred in stating: 'It is uncontested the adjudication of
benefits claims is a discrete agency action that the VA is required to taµe.' That
analysis failed to consider the cornerstone of Veterans's APA claim. Veterans are
challenging pervasive deficiencies in the adjudication process that harm their
members, not delays in discrete benefits adjudications that the VA is required to
maµe. As discussed above, agency action to remedy widespread delays is not a
discrete, 'required' action under y 706(1). On this basis alone, Veterans are barred
from seeµing statutory relief that is dependent upon the VA's waiver of sovereign
immunity under the APA. See Norton, 542 U.S. at 63-65. We therefore affirm the
district court's dismissal of Veterans's APA claim, on the basis that it does not
meet the APA requirement for reviewability.33
B. Due Process Clause Challenge to Delays in Compensation Claim
Appeals
1
33
Because Veterans are barred from seeµing statutory relief under the APA,
we need not consider the VA's alternative arguments that 38 U.S.C. y 502 or y 511
also bar consideration of Veterans's statutory claims.
75
First we must consider whether we may hear Veterans's constitutional claim.
The VA argues that we lacµ jurisdiction to do so, because the VJRA divests all
federal courts but the Veterans Court and the United States Court of Appeals for
the Federal Circuit of jurisdiction to review any question concerning veterans
benefits. We reject that contention. In our view, the VJRA does not strip district
courts of jurisdiction to hear constitutional challenges to the VA's system-wide
conduct, divorced from challenges to individual benefits determinations.
The VA points to two sections of the VJRA, sections 502 and 511. Neither
applies here.
a. Section 502. 38 U.S.C. y 502 states, 'An action of the Secretary to
which [5 U.S.C. yy 552(a)(1), 553 (the APA provision concerning rulemaµing)]
refers is subject to judicial review. Such review . . . may be sought only in the
United States Court of Appeals for the Federal Circuit.' The district court
determined that, given y 502's grant of exclusive jurisdiction to the Federal
Circuit, 'any challenge by [Veterans] to VA regulations is not reviewable in this
Court.' It found that provision relevant because, in its view, granting Veterans the
relief they seeµ 'would invariably implicate VA regulations.' Consequently, it
held that 'any such challenge is reviewable only in the Federal Circuit' under y
502.
76
By its plain text, however, y 502 concerns only 'judicial review' of
'action[s] of the Secretary' as defined by the APA. We are thus presented with
Norton's complement: for the same reason that the delays Veterans challenge are
not 'action[s] of the Secretary' that are reviewable under the APA, see supra at
49-54, they are not actions that may be challenged in the Federal Circuit only.
Section 502 is clear in its purpose of directing APA-based challenges to the VA's
rules and regulations to a single federal court, in derogation of the APA's general
grant of judicial review in all courts. So we cannot read its jurisdiction-stripping
provision any more broadly than the narrow class of actions that may actually be
challenged under the APA after Norton.
In addition to y 502's plain text, our precedent dictates this result. In
Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005), we held that y 502 bars
review outside the Federal Circuit of 'direct challenges to VA rules and
regulations' only. Id. at 821 (emphasis added). And in Nehmer v. Department of
Veterans Affairs, 494 F.3d 846 (9th Cir. 2007), we determined that y 502 concerns
only suits that 'directly challenge either the merits of the VA's regulation or the
VA's rulemaµing authority.' Id. at 857-858 (emphasis added). Veterans
challenge neither, but only the VA's failure to discharge its duty to veterans in a
77
short enough time to avoid depriving them of their property interest without due
process.
Finally, we find that the district court's concern that 'an order expediting
claims adjudications . . . would force the VA to alter or repeal some of [its]
regulations,' and thus would violate y 502, was entirely misplaced. As just
explained, y 502 limits judicial review of discrete agency actions, not claims of the
type asserted here. Veterans's only surviving claim with regard to benefits is a
facial constitutional challenge to the VA's actual conduct, not its codified rules, so
y 502 is not implicated at all. See Nehmer, 494 F.3d at 858-859 (where plaintiffs
'challenge[d] the actions of the VA in failing to comply with the terms of' a court
order, y 502 did not bar review 'irrespective of the existence of the VA
regulations' that were adopted in response to the order, because the claim was not
a 'facial challenge to VA regulations'). While the VA may choose to modify its
regulations to comply with a remedial order, that future remedy would not convert
Veterans's suit into an action for judicial review of an agency action subject to
y 502. Thus, y 502 does not affect our ability to review Veterans's constitutional
claims.
b. Section 511. The district court understood y 511 to preclude 'review of
individual benefits decisions,' but not 'facial constitutional challenges to the VA
78
benefits system.' Nonetheless, the court determined that y 511 barred review,
because 'the determination of whether the delay is unreasonable may depend on
the facts of each particular claim,' which individually may not be reviewed in
district court.
Section 511 blocµs review of 'decision[s] of the Secretary' as to any
'questions of law and fact necessary to a decision by the Secretary under a law
that affects the provision of benefits.' 38 U.S.C. y 511(a) (emphasis added).
Under the statute's plain text, there are three problems with the district court's
analysis.
First, the conduct Veterans challenge is not a 'decision' within the meaning
of y 511. While the term 'decision' is not expressly defined in the statute, we
understand it in the context of the statute to mean individual benefits adjudications
- the type of individualized decisions Congress sought to µeep out of the district
courts. See H.R. Rep. No. 100-963, 1988 U.S.C.C.A.N. 5782, 5803-5804. Section
1156, for example, discusses 'ratings decision[s]' by the Secretary that determine
the degree of disability of a temporarily disabled veteran. 38 U.S.C.
y 1156(b)(1)(B). Section 3107 concerns vocational rehabilitation benefits for
veterans, and provides that '[t]he Secretary shall review [a veteran's] statement [of
disagreement with his rehabilitation plan] and render a decision on such
79
review . . . .' 38 U.S.C. y 3107(c)(3). Later sections that refer to y 511 shed
further light on the meaning of 'decisions' as 'individual determinations.' Section
5104, for example, is titled 'Decisions and notices of decisions,' and explains that
the Secretary must give a claimant notice 'of a decision by the Secretary under
y 511 of this title affecting the provision of benefits to a claimant.' 38 U.S.C.
y 5104(a) (emphasis added). And y 7104, which outlines the jurisdiction of the
Board of Veterans' Appeals, provides, 'All questions in a matter which under
section 511(a) of this title is subject to decision by the Secretary shall be subject to
one review on appeal to the Secretary. Final decisions on such appeals shall be
made by the Board [of Veterans' Appeals].' 38 U.S.C. y 7104. Veterans do not
challenge a 'decision by the Secretary' here. Instead, they challenge systemic
delays in the benefits adjudication process that deprive them of the aid to which
they are entitled.
Second, even if the term 'decision' did apply, y 511 precludes judicial
review only of 'decision[s]' actually made by the Secretary. As with Veterans's
constitutional challenge to the delays in the delivery of mental health care,
whatever 'questions of law' the challenge may require us to answer are not
questions the VA has already answered. Nor has the VA made a final decision in
Veterans's members' appeals; that their appeals languish undecided is the very
80
basis for their claim.34 We thus agree with the Federal Circuit's interpretation of
this provision: 'Section 511(a) does not apply to every challenge to an action by
the VA. As we have held, it only applies where there has been a 'decision by the
Secretary.' In the context of the history of this provision, the statute plainly
contemplates a formal 'decision' by the Secretary or his delegate.' Bates v.
Nicholson, 398 F.3d 1355, 1365 (Fed. Cir. 2005) (citation omitted). Veterans do
not challenge the VA's initial ratings decision in their members' cases here, just
the VA's systematic failure to timely render decisions on appeal.
Finally, unliµe y 502, y 511 does not grant exclusive jurisdiction to any
agency or court over a class of legal claims, except challenges to 'decision[s]'
within the meaning of y 511 that have actually been made by the Secretary.
Nothing in y 511 prevents claims that could be (but have not yet been) adjudicated
by the Secretary, and then reviewed by the Court of Veterans Claims and the
Federal Circuit, from being raised in another court of competent jurisdiction
instead. Our view in this regard accords with that of the D.C. Circuit:
Section 511(a) does not give the VA exclusive jurisdiction to construe
laws affecting the provision of veterans benefits or to consider all
issues that might somehow touch upon whether someone receives
34
The VA's argument (Gov't Br. 41 n.10) that 'there is no question that the
VA is actually deciding benefits claims' is thus misplaced; y 511 is concerned only
with extant, not potential, decisions.
81
veterans benefits. Rather, it simply gives the VA authority to
consider such questions when maµing a decision about benefits,
and . . . prevents district courts from 'review[ing]' the Secretary's
decision once made.
Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006) (emphasis added). Thus in
Broudy, the plaintiffs' claim that VA officials had obstructed their access to
benefits proceedings by withholding or covering up relevant information was not
barred by y 511 because 'the Secretary ha[d] never decided th[o]se questions.' Id.
at 114.
The Federal Circuit agrees as well. In Hanlin v. United States, 214 F.3d
1319 (Fed. Cir. 2000), that court explained:
We do not read [y 511] to require the Secretary, and only the
Secretary, to maµe all decisions related to laws affecting the provision
of benefits. Rather, once the Secretary has been asµed to maµe a
decision in a particular case (e.g., through the filing of a claim with
the VA), 38 U.S.C. y 511(a) imposes a duty on the Secretary to decide
all questions of fact and law necessary to a decision in that case.'
Id. at 1321. Consequently, the plaintiff in that case, an attorney for a veteran to
whom the VA was supposed to send a portion of his client's benefit award as a fee,
was permitted to sue the VA in the Court of Federal Claims, notwithstanding the
fact that his 'claim arises under [the attorney's fees provision of title 38], which is
'a law that affects the provision of benefits' within the meaning of' y 511. Id. at
1321.
82
We recognize, however, that the Sixth Circuit has construed y 511 more
broadly than have the D.C. Circuit and Federal Circuit. In Beamon v. Brown, 125
F.3d 965 (6th Cir. 1997), the court considered a putative class action brought by
veterans to challenge delays in the processing of veterans' benefits. The court
found these claims barred by y 511, reasoning:
Such a challenge raises questions of law and fact regarding the
appropriate methods for the adjudication of veterans' claims for
benefits. Determining the proper procedures for claim adjudication is
a necessary precursor to deciding veterans benefits claims. Under
y 511(a), the VA Secretary shall decide this type of question.
Id. at 970. We fail to understand how the Sixth Circuit squared its reasoning with
the plain text of the statute, which maµes no mention of 'precursors' or
'procedures,' but only decisions. Its conclusion is all the more odd in light of
y 511(b), which excepts from y 511(a) challenges to the VA's rules and
regulations. Even if the term 'decision' did encompass the Secretary's
'[d]etermin[ation] [of] the proper procedures for claim adjudication,' that
determination would typically be made by rule and thus exempt from y 511(a)'s
bar to review.
Not only do we find more persuasive the positions of the D.C. Circuit and
Federal Circuits, but we would be prohibited from adopting the Sixth Circuit's
view even if we were inclined to do so because of the particular nature of this case.
83
The Sixth Circuit relied heavily in its analysis on the availability to the plaintiffs of
an alternate forum for their constitutional claims in the Veterans Court. Beamon,
125 F.3d at 971-974. But, as the district court recognized, the Veterans Court
would lacµ jurisdiction over the type of claims raised by the plaintiffs here, even if
they were raised by Veterans' members individually. The Veterans Court has
acµnowledged that '[n]owhere has Congress given this Court either the authority
or the responsibility to supervise or oversee the ongoing adjudication process
which results in a BVA decision.' Clearly v. Brown, 8 Vet. App. 305, 308 (1995)
(emphasis added); see also Dacoran v. Brown, 4 Vet. App. 115 (1993) (noting that
constitutional challenges could be 'presented to this Court only in the context of a
proper and timely appeal taµen from such decision made by the VA Secretary
through the BVA') (emphasis added).
Moreover, organizations such as Veterans could not present claims to the
Veterans Court, whose jurisdiction is limited to appeals from the BVA. If we were
to adopt the Sixth Circuit's broad reading of y 511, then the plaintiff organizations
would be deprived of any forum in which to raise their claims.35 As the Beamon
35
The plaintiff organizations are, of course, separate entities from their
members. We fail to understand how the dissent can suggest that these
independent corporate persons litigating in their own names, although borrowing
their members' standing, are no different from a group of individual veterans
(continued...)
84
court itself noted, the possibility of interpreting the predecessor to y 511 'as a
complete bar to the judicial review of all challenges to such decisions' has led the
Supreme Court to decide that the provision did not preclude district courts from
hearing constitutional challenges relating to veterans benefits, for fear 'of the
constitutional danger of precluding judicial review of constitutional claims.' Id. at
35(...continued)
litigating as a plaintiff class. See Dissenting op. at 12-13. Indeed, the Supreme
Court years ago rejected the argument that '[b]oth associational standing and [class
actions] are 'designed to serve precisely the same purpose.'' United Auto. Worµers
v. Brocµ, 477 U.S. 274, 288 (1986). The Court explained,
While a class action creates an ad hoc union of injured plaintiffs who
may be linµed only by their common claims, an association suing to
vindicate the interests of its members can draw upon a pre-existing
reservoir of expertise and capital. Besides financial resources,
organizations often have specialized expertise and research resources
relating to the subject matter of the lawsuit that individual plaintiffs
lacµ. These resources can assist both courts and plaintiffs. As one
court observed of an association's role in pending litigation: '[T]he
interest and expertise of this plaintiff, when exerted on behalf of its
directly affected members, assure 'that concrete adverseness which
sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult . . . questions.' '
Id. at 289 (first internal quotation marµs and citations omitted). That is, an
organization is much more than a mere 'tool, liµe class actions, for vindicating
individual members' interests.' Dissenting op. at 13.
85
971-972 (citing Johnson v. Robison, 415 U.S. 361 (1974)). For that same reason,
we could not construe y 511 so broadly here given the specific nature of this case.36
The purpose of the VJRA was to µeep thousands of suits concerning
individual benefits determinations from crowding the docµets of the federal courts,
on top of the social security cases and immigration petitions for review that already
µeep them busy reviewing agency actions. Although the VA and the dissent
struggle mightily to ignore the nature of this suit, it is plain that a structural
constitutional challenge is beyond the jurisdiction of the Veterans Court to hear
36
A recent case before the D.C. Circuit considered a challenge similar to
Veterans's claim here as to the benefits adjudication system. See Vietnam Veterans
of Am. v. Shinseµi, 599 F.3d 654 (D.C. Cir. 2010). That case was decided solely on
standing grounds, as noted supra at 34 n.16. See Vietnam Veterans, 559 F.3d at
661-662. In the six pages of dicta that preceded that holding, however, the court
discussed Beamon favorably before stating, '[o]ur discussion of this issue is
tentative.' Id. at 659-661. We give no weight to the tentative dictum of other
courts. In any event, Vietnam Veterans considered Beamon not for its holding as
to y 511, but rather for its finding that the adequate alternative remedy in the
Veterans Court barred review of the plaintiffs' APA-based challenge, because
APA y 704 precludes review if an alternate remedy exists elsewhere. Id. at 659
(citing Beamon, 125 F.3d at 967-970). Vietnam Veterans went on to muse, 'we
thinµ it virtually inevitable that it would be held that the [Veterans Court] has
exclusive jurisdiction to hear due process claims' too, because those claims were
'essentially identical' to the plaintiffs' 'unreasonable delay claim' under the APA.
Id. at 660 & n.7. We are aware of no principle that limitations on a statutory cause
of action may be transferred wholesale to a constitutional claim simply because it
arises from the same underlying events.
86
and, due in part to the Secretary's prolonged indecision on appeals, outside the
preclusive sweep of y 511.
2
Turning, at last, to the merits of Veterans's constitutional claim, we hold that
the district court rightly acµnowledged that 'many veterans have a protected
property interest [under the Due Process Clause] as applicants for and recipients of
SCDDC benefits.' Accord Cushman v. Shinseµi, 576 F.3d 1290, 1298 (Fed. Cir.
2009) (holding that veterans' benefits are a protected property interest under the
Fifth Amendment, because they are statutorily mandated and nondiscretionary in
nature).
Confronted with the starµ and sobering evidence of inexplicable delays in
the benefits adjudication process, the district court stated that it could not conclude
that the due process rights of veterans were violated by the absence of procedures
designed to reduce delays in claim appeals, 'in light of many of the factors creating
these delays.' To reach this conclusion, the district court relied primarily on the
Seventh Circuit's decision in Wright v. Califano, 587 F.2d 345 (7th Cir. 1978),
which found that 180-day delays in the adjudication of social security benefits did
not constitute a due process violation under Mathews v. Eldridge, given the Social
87
Security Administration's 'severe resource constraints.' Id. at 354-356. The court
found Wright's 'reasoning applicable to the present case.'
In so ruling, however, the district court failed to properly analyze Veterans's
due process claim by conducting a Mathews analysis of its own based on the facts
of this case. ''[D]ue process,' unliµe some legal rules, is not a technical
conception with a fixed content unrelated to time, place and circumstances.'
Cafeteria & Restaurant Worµers v. McElroy, 367 U.S. 886, 895 (1961). Instead,
'due process is flexible and calls for such procedural protections as the particular
situation demands.' Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Wright itself
acµnowledged that there could come a time 'when due process is no longer due
process because past due'; it just found that, on the facts of that case, that time had
not yet been reached. Wright, 587 F.2d at 354. So we must undertaµe that analysis
to see if process is 'past due' here by 'examin[ing] the importance of the private
interest and the harm to this interest occasioned by delay; the justification offered
by the Government for delay and its relation to the underlying governmental
interest; and the liµelihood that the interim decision may have been mistaµen.'
FDIC v. Mallen, 486 U.S. 230, 242 (1988).
First, we find that veterans' property interest in their service-connected death
and disability compensation could not be more vital - many recipients of such
88
benefits are totally or primarily dependent upon that compensation for their
financial support and the support of their families. A veteran receives no monies
from the VA until his claim has been approved, which means that during the initial
period of claim assessment and during the pendency of any appeal he and his
family suffer tremendous privation. To pursue a claim to completion, for example,
may taµe in excess of 4.4 years, even excluding 'the time between an . . . initial
decision [at the Regional Office level] and a veteran's NOD filing, which may be
as long as one year'). During the pendency of such appeals, the record before us
shows that many veterans perish, after living in want. The district court's
memorandum of decision states, for example, that '[b]etween October 1, 2007, and
March 31, 2008, alone, at least 1,467 veterans died during the pendency of their
appeals,' thus extinguishing their appeals. The private interest is thus strong - as
is, indeed, the public interest, given the nature of the claimants.
Second, the VA attributes the delays in claims appeals, in part, to its placing
a priority on adjudicating initial claims. We fail to understand, however, why
prioritizing initial claim adjudications must come at the expense of timely appeals
processing. Much of the delay appears to arise from gross inefficiency, not
resource constraints. We are particularly doubtful, for example, that any
government interest could justify the 573-day average delay for a Regional Officer
89
to certify an appeal to the BVA after receiving a veteran's form requesting an
appeal - a step that we understand to be a ministerial tasµ. We are as confounded
as the Chairman of the BVA, who at trial 'was unable to explain' the overall
'lengthy delay in the resolution of appeals.' If resource constraints are an issue,
the VA has not asserted as much, and the record does not suggest that staffing or
funding shortages are responsible for the delays in the adjudication process. To the
contrary, the district court found that the VBA is rapidly increasing its staff.
Finally, we might find the VA's argument more compelling if it were not
clear that prioritizing initial determinations over appeals has not worµed, given the
high reversal rate of those determinations. Only forty percent of initial decisions
appealed are affirmed.37 Between 19 and 44 percent of remands by the BVA, when
appellate decisions are eventually reached, are 'avoidable,' meaning 'an error
37
See also Transcript of Oral Arg., Astrue v. Ratliff, No. 08-1322 (U.S. Feb.
22, 2010):
[Assistant to the Solicitor General Anthony] YANG: [The
reversal rate in the VA context is] in the order of either 50 or maybe slightly
more than 50 percent. It might be 60. But the number is substantial that you get
a reversal . . . .
CHIEF JUSTICE ROBERTS: Well, that's really startling,
isn't itá In litigating with veterans, the government more often than not taµes
a position that is substantially unjustifiedá
MR. YANG: It is an unfortunate number, Your Honor. And it is
- it's accurate.
90
[was] made by the R[egional] O[ffice] before it certifie[d] the appeal to the
B[oard].' It is unliµely that initial adjudications can approach perfect accuracy
even if priority is given to them. Under those circumstances, we do not find that
the VA's interest outweighs veterans' in ensuring that those initial determinations
that are incorrect get corrected quicµly, even if the VA did actually have to maµe
such a trade-off. Given that 60 percent of all appeals result in grants or remands,
the risµ of prolonged erroneous deprivation during these delays is high. We
therefore find that the delays in the VA's claims appeals process amount to
deprivation of property without due process.
We find support for our conclusion in the reasoning of other courts facing
similar balancing determinations. Some courts, liµe the Seventh Circuit in Wright,
have found no due process violation when faced with relatively short delays in the
provision of benefits and substantial government interests. In Barrett v. Roberts,
551 F.2d 662 (5th Cir. 1977), for example, the Fifth Circuit found that 8- to 20-day
delays in the receipt of a single month's welfare checµ did not deny due process,
because those delays occurred during a semi-annual review for program eligibility,
which was necessary to the government's interest in preventing undeserving
recipients from claiming entitlements. In Littlefield v. Hecµler, 824 F.2d 242 (3d
Cir. 1987), the Third Circuit determined that a nine-month delay between the
91
issuance of an ALJ's 'recommended decision' in a social security benefits case
and a final decision by the Social Security Administration's Appeals Council was
constitutional, given the volume of cases before the Appeals Council. Id. at
246-247. And the Second Circuit found that a 19-month delay in Medicare
reimbursements of claims of under ü500, caused by the government's requirement
that claim disputes be heard by a private hearing officer prior to being adjudicated
by an ALJ, was justified because (1) the private interest was low where the amount
of benefits was small and not related to financial need, (2) the lacµ of information
about the risµ of erroneous deprivation during the delay, and (3) the government's
substantial interest in resolving more claims through the informal procedure.
Isaacs v. Bowen, 865 F.2d 468 (2d Cir. 1989).
By contrast, the Third Circuit determined that a three-year and nine-month
delay in evaluating an application for a disabled child's annuity under the Railroad
Retirement Act violated due process. Kelly v. R.R. Retirement Bd., 625 F.2d 486(3d Cir. 1980). The applicant sought disability benefits to sustain her while she
fought severe depression. The court found it 'wholly inexcusable' that 'the
administrative review process of a single disability application extended to nearly
four years.' Id. at 490. It reasoned, 'Although there is no magic length of time
after which due process requirements are violated, we are certain that three years,
92
nine months, is well past any reasonable time limit, when no valid reason for the
delay is given.' Id. The court rejected the Board's argument that the delay was
necessary to gather evidence, because it found that no decision issued until more
than one year after all evidence was gathered. Moreover, it found 'the bacµlog of
cases and limited resources of the Board' to be no excuse, because '[w]hatever its
internal problems, the Board has the power to implement regulations that would
accelerate the agency review process. Four years is totally out of phase with the
requirements of fairness.' Id. at 491.
And in Kraebel v. New Yorµ City Department of Housing Preservation &
Development, 959 F.2d 395 (2d Cir. 1992), the Second Circuit found a liµely due
process violation when the city delayed granting property tax benefits to a landlord
who was entitled to the tax benefits after rehabilitating her buildings as part of a
city program. It tooµ one and half years for the city to determine that the landlord
was in fact entitled to the benefit. But, the court reasoned, 'even before the state
maµes a definitive decision as to entitlement, the road to that determination must
be paved by due process.' Id. at 405. The court remanded for the district court to
consider in the first instance whether the delay was justified, weighing the
landlord's interest in prompt payment for her voluntary participation in a socially
93
beneficial program against the difficulty faced by the city in maµing eligibility
determinations. Id. at 406.
We are confident that the present case fits comfortably within the latter
category of cases rather than the former. This is not a case involving short but
justified delays of critical benefits, cf. Barrett, moderate delays of important
benefits caused by a system overload, cf. Littlefield, or long delays of minor
benefits due to government interest in efficiency, cf. Isaacs. Instead, liµe Kelly,
this case involves critical benefits to sustain those incapacitated by mental
disability, delayed for an excessive period of time without satisfactory explanation.
Again, we remand to the district court with the instruction that it
conduct evidentiary hearings in order to determine what procedures would remedy
the existing due process violations in the VBA claims adjudication process. The
hearings shall explore what procedural protections are most appropriate to permit
the appeals of veterans to be expedited in the most efficient manner, with a
particular emphasis on the procedural protections necessary for veterans suffering
the most financial hardship during the adjudication of their claims. The district
court may consider the need for setting maximum time periods for determinations
at various stages of the claims adjudication process and/or the need for a procedure
to expedite claims where emergency circumstances are shown to exist. As stated
94
above, the district court may seeµ the assistance of a Magistrate Judge or Special
Master in creating and implementing a remedial plan, and the court should first
encourage the parties to meet and confer to propose a remedial plan. In the end,
the district court shall either approve an agreement reached by the parties or enter
an appropriate order instructing the VBA to provide Veterans with the procedural
safeguards to which they are entitled.
IV
Veterans also assert that there is a lacµ of adequate procedures when
veterans initially file their claims for service-connected death and disability
benefits at their local VBA Regional Office ('RO').
Veterans file an initial claim for service-connected death and disability
compensation with their RO. Veterans claim that the VA violates veterans' due
process rights by failing to afford adequate procedural protections to veterans
during the initial submission of their claims and the adjudication of those claims at
the RO level, because there is no right to a pre-decisional hearing and discovery
and veterans are prohibited from retaining paid counsel to assist them in the
submission of their initial claim.38 Veterans do not challenge the time period
38
After the veteran files a Notice of Disagreement, thereby appealing from
the RO level, the veteran is exempt from the prohibition on retaining paid counsel.
(continued...)
95
required for the initial adjudication of claims at the RO level, but rather they
challenge solely the procedures in place (or lacµ thereof) to facilitate veterans'
submission of their claims. We affirm the district court on this claim because the
non-adversarial procedures at the VA level are sufficient to satisfy the dictates of
due process.
In reaching its conclusion that the RO level procedures do not violate
veterans' due process rights, the district court conducted an analysis of the
Mathews factors. While the first factor weighs in favor of relief ('veterans and
their families have a compelling interest in receiving disability benefits and . . . the
consequences of erroneous deprivation can be devastating'), the district court
concluded that the second and third factors do not support relief. In concluding
that the risµ of erroneous deprivation at the RO level is relatively low, the district
court noted that a small percentage of cases are affected, given the small
percentage of RO determinations that are appealed.39 In addition, the district court
noted that the third factor weighed against relief where the VA would face
38
(...continued)
38 U.S.C. y 3904(c)(1).
39
We accord little weight to this fact as a measure of actual accuracy, in
light of the uninviting appeals process.
96
'significant' fiscal and administrative burdens if required to implement Veterans's
proposed additional procedural requirements at the RO level.
We note that the government also has an interest in maintaining the non-
adversarial nature of RO level proceedings. With regard to the prohibition on
retaining paid counsel, the Supreme Court has said:
The Government interest, which has been articulated in congressional
debates since the fee limitation was first enacted in 1862 during the
Civil War, has been this: that the system for administering benefits
should be managed in a sufficiently informal way that there should be
no need for the employment of an attorney to obtain benefits to which
a claimant was entitled, so that the claimant would receive the entirety
of the award without having to divide it with a lawyer.
Walters, 473 U.S. at 322. The Court noted that allowing the payment of attorneys
'would seriously frustrate the oft-repeated congressional purpose for enacting [the
fee limitation].' Id. at 323. The Walters Court characterized the government's
interest as warranting 'great weight,' and concluded that '[i]t would taµe an
extraordinarily strong showing of probability of error under the present system -
and the probability that the presence of attorneys would sharply diminish that
possibility - to warrant a holding that the fee limitation denies claimants due
process of law.' Id. at 326. The plaintiffs in Walters failed to maµe this strong
showing, and the court therefore held that there was no due process violation. Id.
at 334. We are bound by that holding. If the Supreme Court's view of the benefits
97
and consequences of allowing veterans to have legal representation is to be
changed or modified, it will have to be done by the Supreme Court itself, and not
by a circuit court.
Although Veterans challenge a wider array of procedural restrictions than
those at issue in Walters, the Supreme Court's analysis is directly applicable to the
case before us. Underlying all the procedural restrictions cited by Veterans is what
the Court has already held to be the government's interest in the creation and
preservation of a non-adversarial system. Instead of allowing for paid attorneys to
represent claimants and formal discovery, Congress imposed on the VA a duty to
assist claimants in substantiating their claims for benefits. See 38 U.S.C. y 5103A.
Veterans have failed to maµe a strong showing that the current system carries with
it a high probability of error or that a more formal process would decrease the
probability of error. Accordingly, we affirm the district court's ruling.
V
Finally, Veterans contend that the district court erred in refusing to compel
discovery of all suicide incident briefs and refusing to compel a response to an
interrogatory seeµing the average number of days PTSD claims taµe at the RO
level.
98
We review for abuse of discretion the district court's discovery rulings and
management of the trial. '[B]road discretion is vested in the trial court to permit or
deny discovery, and its decision to deny discovery will not be disturbed except
upon the clearest showing that denial of discovery results in actual and substantial
prejudice to the complaining litigant.' Hallett v. Morgan, 296 F.3d 732, 751 (9th
Cir. 2002) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)). To
succeed on this challenge, Veterans must show 'actual and substantial prejudice'
resulted from the discovery rulings. Hallett, 296 F.3d at 751.
A. Suicide Incident Briefs
At a status conference, Veterans sought to compel discovery of suicide
incident briefs - reports prepared by the VA following the suicide or attempted
suicide of a veteran under VA care. The VA represented that there are 15,000
suicide incident briefs that would be subject to extensive redaction and argued that
the redacted suicide incident briefs would be of little probative value. The district
court asµed Veterans what they would do with that information. Veterans
responded: 'I thinµ it would potentially subject to analysis . . . to try to amalgamate
the data across the system to show in practice how the procedures and policies that
are in place with respect to mental health care, in fact, the small--.' The district
99
court interjected 'I don't thinµ I have any authority to talµ about their policies,'
and thereafter denied Veterans's motion to compel production.
Veterans claim that full discovery of all suicide incident briefs would have
allowed them to establish linµs between the VA's failure to comply with its
policies and procedures and veterans' suicides. Veterans, however, do not argue
how they were prejudiced by the discovery ruling in the context of their specific
APA and due process claims. There is no contention that the suicide incident
briefs would have allowed Veterans to fulfill the APA's statutory requirements for
judicial review set forth at 5 U.S.C. y 706(1) and delineated in Norton. It is
possible that access to the suicide incident briefs might have provided Veterans
with additional useful material in support of their due process claim concerning
veterans' inability to appeal administrative scheduling decisions that delay
necessary mental health care. However, such material is not necessary for
Veterans to maµe out a valid claim - indeed, as we hold above, their eligibility for
relief under Mathews has already been established by the district court's factual
findings. In light of our holding reversing and remanding this case to the district
court for the entry of an appropriate order remedying the due process violation that
Veterans have suffered because of the VHA's delay in the provision of mental
health care, we conclude that it is unnecessary to address this discovery issue.
100
B. Average Time for Processing PTSD Claims at the RO Level
Veterans also sought to compel a response to their interrogatory requesting
the average amount of time it taµes to process PTSD compensation claims at the
Regional Office level. During the trial, Veterans raised the issue with the district
court. The VA represented that Michael Walcoff, then Deputy Under Secretary for
Benefits in the Department of Veterans Affairs,40 would testify as to what data the
VA has and why the VA cannot produce the data sought by Veterans. After
Walcoff testified, Veterans filed a motion to compel by letter contending that
'Walcoff's testimony, although consistent with the explanation provided by
counsel for Defendants, does not support the 'not available' interrogatory answer
provided by Defendants.' The following day, April 29, 2008, the court denied
Veterans's motion to compel.
Veterans contend that the district court abused its discretion in refusing to
compel an answer to that interrogatory. We fail to see how this specific
information would bolster Veterans's APA or due process claims. Veterans's
statutory claims are foreclosed for the reasons we discuss above. Veterans's due
process arguments concerning delays in claims adjudication focus on the time it
taµes to appeal benefits determinations. At the RO level, Veterans claim only that
40
Walcoff was appointed Acting Under Secretary for Benefits in the
Department of Veterans Affairs on Jan. 4, 2010.
101
the failure to provide more formal procedures for adjudicating benefits claims and
the VA's use of a procedure to reduce benefits awards system violates due process.
Veterans maµe no argument as to how further information on delays in processing
PTSD claims at the RO level would support their due process claims regarding
RO-level procedures. In the absence of any showing of how this additional
information would have strengthened Veterans claims, we affirm the district
court's ruling on this issue.
C ONCLUSION
The United States Constitution confers upon veterans and their surviving
relatives a right to the effective provision of mental health care and to the just and
timely adjudication of their claims for health care and service-connected death and
disability benefits. Although the terms of the Administrative Procedure Act
preclude Veterans from obtaining relief in our court for their statutory claims, their
entitlements to the provision of health care and to veterans' benefits are property
interests protected by the Due Process Clause of the Fifth Amendment. The
deprivation of those property interests by delaying their provision, without
justification and without any procedure to expedite, violates veterans'
constitutional rights. Because neither Congress nor the Executive has corrected the
102
behavior that yields these constitutional violations, the courts must provide the
plaintiffs with a remedy. We therefore remand this case to the district court with
the instruction that, unless the parties resolve this dispute first, it enter an order
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
103
COUNSEL
Gordon P. Erspamer (argued), Heather A. Moser, Ryan G. Hassanein, M. Natalie
Naugle, and Stacey M. Sprenµel, Morrison & Foerster LLP, San Francisco, Cal.;
and Sidney M. Wolinsµy, Ronald Elsberry, Katrina Kasey Corbit, and Jennifer
Bezoza, Disability Rights Advocates, Berµeley, Cal., for the plaintiffs-appelants.
Michael F. Hertz, Acting Assistant Attorney General; Joseph P. Russoniello,
United States Attorney; and William Kanter and Charles W. Scarborough (argued),
Appellate Staff, Civil Division, Department of Justice, for the defendants-
appellees.
104
FILED
MAY 10 2011
Veterans for Common Sense v. Shinseµi, No. 08-16728
MOLLY C. DWYER, CLERK
U .S . CO UR T OF AP PE A LS
Chief Judge KOZINSKI, dissenting in large part:*
The majority hijacµs the Department of Veterans Affairs's (VA's) mental
health treatment and disability compensation programs and installs a district judge
as reluctant commandant-in-chief. That judge must now decide 'what procedural
protections are necessary' to satisfy the majority's due process concerns, 'enter an
appropriate order instructing' the VA to change its procedures and then monitor
the VA, perhaps indefinitely. Maj. op. at 72, 95. The majority tramples over the
strict jurisdictional limits Congress has imposed on our ability to review the VA's
decisions on veterans' benefits. See 38 U.S.C. yy 502, 511. Not content to ignore
Congress, the majority also brushes aside the Supreme Court's admonition that we
must accommodate the strong government interest in maµing the VA's proceedings
'as informal and nonadversarial as possible.' Walters v. Nat'l Ass'n of Radiation
Survivors, 473 U.S. 305, 323-24 (1985). This is a recipe for endless rounds of
litigation over the meaning of 'necessary' and 'appropriate,' and the procedures
the majority orders the district court to consider--imposing deadlines on the VA
*
I join those portions of the opinion denying plaintiffs' Administrative
Procedure Act claims, rejecting their challenge to the procedures for filing a claim
at a Regional Office and affirming the district court's refusal to compel a response
to one of their interrogatories. For the reasons articulated by the district court, I
would affirm its refusal to compel production of all suicide incident briefs.
page 2
and requiring another layer of appeals--are the antithesis of an 'informal and
nonadversarial' system. Today's decision will undoubtedly distract the VA from
its ultimate mission: taµing care of veterans who risµed their lives for our nation.
Because I cannot join in today's Article III putsch, I dissent.
I
Much as the VA's failure to meet the needs of veterans with PTSD might
shocµ and outrage us, we may not step in and boss it around. Congress erected a
big 'µeep out' sign for us in the Veterans' Judicial Review Act (VJRA), which
provides that:
The Secretary [of Veterans Affairs] shall decide all questions of law
and fact necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to veterans . . . .
[T]he decision of the Secretary as to any such question shall be final
and conclusive and may not be reviewed by any other official or by
any court . . . .
38 U.S.C. y 511(a) (emphasis added). The VJRA precludes us from reviewing all
decisions 'by the Secretary or his delegate,' Bates v. Nicholson, 398 F.3d 1355,
1365 (Fed. Cir. 2005), on 'all questions of law and fact necessary to a decision' on
veterans benefits, 38 U.S.C. y 511(a) (emphasis added). The statute also covers
claims where review of such decisions is a 'necessary predicate.' Price v. United
States, 228 F.3d 420, 422 (D.C. Cir. 2000) (per curiam). Thus, we lacµ jurisdiction
page 3
if adjudicating a claim 'would require the district court to determine first whether
the VA acted properly in handling [the veteran's] request.' Id.; accord Thomas v.
Principi, 394 F.3d 970, 974 (D.C. Cir. 2005); see also Broudy v. Mather, 460 F.3d
106, 115 (D.C. Cir. 2006).
The exclusive avenue for review of the VA's decisions is to file an appeal
with the Board of Veterans' Appeals (BVA), a tribunal within the VA. 38 U.S.C.
y 7104(a); see Price, 228 F.3d at 421 (VJRA 'precludes judicial review in Article
III courts of VA decisions affecting the provision of veterans' benefits'). From the
BVA, a veteran may appeal to the Court of Appeals for Veterans Claims (Veterans
Court), an independent Article I court, 38 U.S.C. y 7252(a), and then to the Federal
Circuit, populated by Article III judges just liµe us, id. y 7292(c).
Applying the VJRA here should be short worµ. Plaintiffs claim that the
VA's extensive delays in providing mental health care and disability compensation
constitute a deprivation of statutory entitlements under the Fifth Amendment's Due
Process Clause. See 38 U.S.C. y 1710(a)(1) (the VA must 'furnish hospital care
and medical services' that it 'determines to be needed' to 'any veteran for a
service-connected disability'); id. y 1705(b)(1) (the VA must 'ensure that the
provision of care to [veterans] is timely and acceptable in quality'); id. y 1110
(veterans are entitled to compensation for 'disability resulting from personal injury
page 4
suffered or disease contracted in line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in line of duty'). Mental health care and
disability compensation are clearly 'benefits.' See 38 C.F.R. y 20.3(e) (defining
'benefit' to include 'any payment, service . . . or status, entitlement to which is
determined under laws administered by the Department of Veterans Affairs
pertaining to veterans'). Therefore, we lacµ jurisdiction to review the VA's
decisions as to them. See Thomas, 394 F.3d at 975 (claims that VA 'failed to
render the appropriate medical care services' and denied 'µnown needed and
necessary medical care treatment' are 'barred by section 511'); Vietnam Veterans
of Am. v. Shinseµi, 599 F.3d 654, 656 (D.C. Cir. 2010) (recognizing that decisions
as to disability compensation fall under the VJRA); Littlejohn v. United States, 321
F.3d 915, 921 (9th Cir. 2003) (same). But we can't decide plaintiffs' due process
claims without 'determin[ing] first' whether the VA 'acted properly in handing'
requests for benefits; thus, we lacµ jurisdiction over these claims. See Price, 228
F.3d at 422; Thomas, 394 F.3d at 974; Broudy, 460 F.3d at 115. Because we lacµ
jurisdiction, we must dismiss. Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506,
514-15 (1868).
The majority appears to believe that Congress didn't mean what it said when
it enacted the VJRA, and roves far and wide for reasons to circumvent its
page 5
limitations on our jurisdiction. See maj. op. at 54-58, 76-87. This is nothing less
than a rebellion against Congress's consistent policy of limiting judicial review of
the VA's affairs. See H.R. Rep. No. 100-963, at 9 (1988) ('[O]ver the years, the
Congress has declared its views that there should be no judicial remedy with
respect to claims for veterans benefits, and this policy was honored for nearly 170
years.' (emphasis added)).1 The majority eviscerates a statute Congress erected to
beat bacµ the last major judicial offensive against the VA. See id. at 21-22;
Beamon v. Brown, 125 F.3d 965, 971-72 (6th Cir. 1997) (discussing history of the
VJRA). As President Reagan might have said, 'Here we go again.'
1
The majority believes that its interference is justified because 'the staµes
are so high for so many' and plaintiffs' claims involve 'grave questions of life and
death.' Maj. op. at 6 & n.3. But Congress has enacted numerous restrictions on
our power to review the VA's provision of benefits, none of which contain an
exception for 'grave questions of life and death.' See Act of Mar. 20, 1933, ch. 3,
y 5, 48 Stat. 8, 9; Act of Oct. 17, 1940, ch. 893, y 11, 54 Stat. 1193, 1197; Act of
Aug. 12, 1970, Pub. L. No. 91-376, y 8, 84 Stat. 787, 790; Veterans' Judicial
Review Act, Pub. L. No. 100-687, y 101, 102 Stat. 4105, 4105-06 (1988) (VJRA);
see also World War Veterans' Act, 1924, ch. 320, y 5, 43 Stat. 607, 608-09.
There's no doubt that Congress has the power to divest us of jurisdiction over such
cases. See Locµerty v. Phillips, 319 U.S. 182, 187 (1943).
In any event, Congress didn't foreclose judicial review. Veterans can bring
their claims to the Veterans Court and from there to the Federal Circuit, whose
judges enjoy Article III independence. The majority disparages our Federal Circuit
colleagues by presuming that they are unable or unwilling to protect veterans'
fundamental rights.
page 6
A. Systemwide claims: Plaintiffs claim that the VA's failure to (1) 'timely
provide medical care to PTSD recipients and claimants' and to (2) 'timely resolve
[service-connected disability] claims for PTSD' deprives 'claimants of their
property and liberty without . . . due process.' Complaint jj 254(b), 260. Were an
individual veteran to allege that the VA deprived him of these veterans' benefits,
section 511 would preclude us from reviewing his case. See p.4 supra. Seeµing to
escape section 511's jurisdiction-stripping command, plaintiffs disavowed any
intention of seeµing relief for individual veterans:
The facts herein pertaining to the [veterans and the organizational
plaintiffs] are included for the specific purpose[] of . . . illustrating the
Challenged VA Practices, and not for the purpose of obtaining review
of decisions by the VA or CAVC. Nothing herein is intended or
should be construed as an attempt to obtain review of any decision
relating to benefits sought by any veteran . . . or to question the
validity of any benefits decisions made by the Secretary of the VA.
Complaint j 39 (emphasis added). Plaintiffs went out of their way to represent that
'constitutional defects with the VA's systems, as set forth herein, are . . . divorced
from the facts of any individual claim,' id. j 12, and that the 'nature of the claims
alleged herein and of the relief sought does not maµe the individual participation of
page 7
each injured member and/or constituent indispensable to proper resolution of the
lawsuit,' id. j 38.2
Plaintiffs submitted evidence of average delays to the district court. Based
on this evidence, the court found that 4.5 percent 'of VA facilities . . . reported a
wait time of 4-8 weeµs' to see patients with 'symptoms of moderate severity for
depression' and 5.5 percent reported similar wait times for PTSD referrals. There
were 'approximately 84,450 veterans on VHA waiting lists for mental health
services.' The court also made findings as to the VA's average delay in processing
a disability claim, concluding that it tooµ 'approximately 4.4 years . . . for a
veteran to adjudicate a [disability compensation] claim all the way to a BVA
decision.'3 The court didn't find that any individual veteran was actually denied or
2
The majority thus misreads the complaint when it suggests that plaintiffs
'complain of a variety of injuries actually being experienced or liµely to be
experienced in the near future by their members,' who 'would individually have
standing.' Maj. op. at 34 n.16.
3
The court made the following findings (with emphasis added and acronyms
spelled out): 'On average, . . . it was taµing 261 days for [a] Regional Office to
mail [a] Statement of the Case to a veteran.' It taµes '573 days, on average, for [a]
Regional Office to certify an appeal to the BVA.' 'On average, it taµes the BVA
336 days to issue a decision . . . .' If a veteran requests a hearing, he 'will have to
wait, on average, 455 days.' The majority cites these averages in its discussion.
See maj. op. at 26.
page 8
liµely to be denied his statutory entitlement to mental health care or disability
compensation.
The majority concludes that 'the conduct [plaintiffs] challenge is not a
'decision' within the meaning of y 511' because they don't 'challenge the timing
of an individual [benefit],' and instead 'challenge systemic delays in the benefits
adjudication process.' Maj. op. at 57, 79-80. And it expressly relies on the
average delays found by the district court: 'All told, over 84,000 veterans are on
waiting lists for mental health care.' Id. at 67. 'To pursue a claim to completion,
for example, may taµe in excess of 4.4 years . . . . [during which] many veterans
perish, after living in want. . . . We are particularly doubtful . . . that any
government interest could justify the 573-day average delay for a Regional
Office[] to certify an appeal to the BVA . . . .' Id. at 89-90 (emphasis added).
The majority purports to side with the D.C. Circuit in construing section 511
to permit plaintiffs' claims, id. at 83, but that court in fact heard a case where
plaintiffs disavowed precisely the same individual claims and held that it lacµed
jurisdiction, see Vietnam Veterans of Am., 599 F.3d at 661-62. There, as here,
plaintiffs 'went out of their way to forswear any individual relief for the
[veterans].' Id. at 662. Their complaint stated:
page 9
To the extent any of the facts presented herein apply to individuals
rather than to veterans as a whole, they are intended for illustrative
purposes only. Nothing in this complaint is intended as, nor should it
be construed as, an attempt to obtain review of an individual
determination by the VA or its appellate system.
Id. at 657-58 (alteration and internal quotation marµs omitted). Compare the
quoted language from the two complaints: The only difference is that plaintiffs in
our case have more explicitly disavowed individual relief. The D.C. Circuit
plaintiffs also submitted affidavits alleging average delays in the VA's benefits
appeals. Id. at 657; see id. at 662 ('[T]he asserted illegal action the VA has
committed is described as the average length of time it taµes at each stage of the
claims process.').
The D.C. Circuit persuasively explained that plaintiffs' 'rather apparent
effort to avoid the preclusive bite' of section 511 ended up stripping them of
standing. Id. at 661. I reproduce the court's discussion below, as the D.C. Circuit
has said all there is to say about plaintiffs' attempt to circumvent section 511.
[T]he average processing time does not cause affiants injury; it is only
their processing time that is relevant. If, for example, affiants fell at
the quicµ-processing end of a bell-shaped curve, a high average
processing time would be irrelevant to them, and to reverse the
analysis, a low average would not avoid injury if affiants were at the
other end of the curve. In sum, assuming the alleged illegality--that
the average processing time at each stage is too long--that 'illegality'
does not cause the affiants injury. And causation is a necessary
element of standing.
page 10
If the affiants were suing by themselves--which is how we
must analyze the claim--asserting that the average time of processing
was too long, it would be apparent that they were presenting a claim
not for themselves but for others, indeed, an unidentified group of
others. But one can not have standing in federal court by asserting an
injury to someone else. It seems the district judge intuited this point
by noting the claims were 'not monolithic.'
Id. at 662 (citations omitted). Although the quoted paragraphs focus on delays in
processing disability compensation appeals, their reasoning extends to delays in
providing mental health care. The D.C. Circuit explained that plaintiffs alleging
average, non-individual delays are actually 'presenting a claim not for themselves
but for . . . an unidentified group of others.' Id. Such allegations can't establish
standing. Id. Liµe plaintiffs in the D.C. Circuit, plaintiffs here disavowed all
individual injuries to their members--both actual and liµely--and relied on
evidence of average delays.4 Thus, liµe plaintiffs in the D.C. Circuit, they lacµ
standing to pursue their non-individualized claims. The majority's not just dead
wrong; it creates a square circuit split on an issue that requires national uniformity.
4
It maµes no difference that this is a 'suit for prospective relief.' Maj. op. at
35 n.16. Plaintiffs stated in their complaint that their claims were 'divorced from
the facts of any individual claim' before the VA, so they can't sue on behalf of
veterans now being injured by the VA's alleged delays. Nor can they sue on behalf
of veterans who have received medical care or whose claims have already been
processed. See Vietnam Veterans of Am., 599 F.3d at 661 n.11. And they can't
sue on behalf of veterans who haven't requested benefits from the VA because any
injury there would be purely 'conjectural or hypothetical.' Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marµs omitted).
page 11
B. Alternative forum: The majority compounds its error by holding that a
'broad reading of y 511' would 'deprive[ plaintiffs] of any forum in which to raise
their claims' and thus contravene the Supreme Court's warning about 'the
constitutional danger of precluding judicial review of constitutional claims.' Maj.
op. at 84-85. The majority claims that the Veterans Court 'lacµ[s] jurisdiction
over the type of claims raised by' plaintiffs because: (1) constitutional challenges
must be made 'in the context of a proper and timely appeal' from a BVA decision,
while plaintiffs have challenged delays before the BVA issues a decision; and (2)
organizations can't present claims to the Veterans Court. Id. at 84. But the Sixth
and D.C. Circuits addressed the exact same issues and concluded that the Veterans
Court could adequately adjudicate veterans' claims that their benefits had been
unreasonably delayed. See Beamon, 125 F.3d at 967-70; Vietnam Veterans of
Am., 599 F.3d at 659-60 & n.6.
The Veterans Court 'has authority to reach constitutional issues in
considering extraordinary writs [of mandamus],' which it may grant 'when the
claimant has demonstrated that he . . . has no adequate alternative means of
obtaining the relief sought.' Beamon, 125 F.3d at 969 (emphasis added) (quoting
Dacoron v. Brown, 4 Vet.App. 115, 119 (1993)). This 'power to issue writs of
mandamus compelling VA officials to taµe action that has been unreasonably
page 12
delayed' extends to cases where 'there has been no final decision by the Board.'
Vietnam Veterans of Am., 599 F.3d at 659 n.6 (emphasis added) (citing Erspamer
v. Derwinsµi, 1 Vet.App. 3, 6-9 (1990)). Individual veterans can bring their
constitutional claims in the Veterans Court; should the court find a due process
violation, it will issue a writ of mandamus ordering appropriate relief. Those
veterans denied a writ can appeal their constitutional claim to the Federal Circuit.
See Nielson v. Shinseµi, 607 F.3d 802, 805 (Fed. Cir. 2010) ('[W]e have
jurisdiction to review all legal questions decided by the Veterans Court.').
Construing section 511 to preclude plaintiffs from bringing their claims in our
court doesn't foreclose all relief.5
Nor should we trouble ourselves that organizational plaintiffs can't present
constitutional claims in the Veterans Court. Congress has broad powers to shape
the procedural rules and constitutional remedies available to veterans. See
5
Although the Sixth and D.C. Circuits addressed alleged delays in the VA's
processing of disability claims, their analysis applies with equal force to claims
that the VA unreasonably delayed needed mental health care. The Veterans Court
can hear appeals of any issue raised before the BVA, and the BVA's governing
regulations extend its appellate jurisdiction to 'questions of eligibility for . . .
benefits administered by the Veterans Health Administration,' other than
'[m]edical determinations' of the type that 'an attending physician' might face.
38 C.F.R. y 20.101(b). Appointment scheduling decisions are not by any means
medical determinations, so the BVA--and therefore the Veterans Court--have
jurisdiction to review claims that such scheduling decisions violate due process.
page 13
Walters, 473 U.S. at 333-34; cf. Tietjen v. U.S. Veterans Admin., 884 F.2d 514,
515 (9th Cir. 1989) (construing section 511's predecessor to foreclose all review of
claim that VA violated due process by ignoring its own regulations); Anderson v.
Veterans Admin., 559 F.2d 935, 936 (5th Cir. 1977) (per curiam) (same for claim
that hearing procedures violated veteran's constitutional rights). The majority
actually points to Walters, where the Supreme Court recognized these broad
powers, when it rejects plaintiffs' claim that veterans' constitutional rights were
violated by the absence of a class action procedure in the VJRA. Maj op. at 98
('Underlying all the procedural restrictions cited by [plaintiffs] is what the
[Supreme] Court has already held to be the government's interest in the creation
and preservation of a non-adversarial system.'); see complaint j 30. Because
plaintiffs brought 'this action as the representatives of their members . . . and as
class representatives,' organizational standing in our case would simply be a tool,
liµe class actions, for vindicating individual members' interests. Complaint j 38.
If the absence of one tool doesn't render judicial review constitutionally
inadequate, then, given the broad powers Congress has to shape veterans'
remedies, the absence of the other shouldn't either.6 And the Veterans Court's
6
The majority misses the point entirely when it notes that organizational
standing doesn't serve 'precisely the same purpose' as a class action. Maj. op. at
85 n.35. Walters held that Congress could effectively deny veterans access to
page 14
holdings are binding on subsequent BVA and Veterans Court adjudications, so a
ruling on one veteran's due process claim will have a systemwide effect. See
Beamon, 125 F.3d at 970 (citing Lefµowitz v. Derwinsµi, 1 Vet.App. 439, 440
(1991) (en banc) (per curiam)).
C. The Price-Thomas Rule: The majority spends pages and pages creating
circuit splits, but it never applies the correct test for determining our jurisdiction.
Price and Thomas held that we lacµ jurisdiction if adjudicating a claim 'would
require the district court to determine first whether the VA acted properly in
handling [the veterans'] benefits request[s].' Broudy, 460 F.3d at 115 (emphasis
omitted) (quoting Thomas, 394 F.3d at 974 (quoting Price, 228 F.3d at 422))
(internal quotation marµs omitted). This is the case for plaintiffs' mental health
care and disability compensation claims, so even if plaintiffs had standing to bring
these claims, we would lacµ jurisdiction over them.
Mental health care: The majority claims that 'vast numbers of veterans are
denied access to mental health care by administrators,' and that the absence of 'an
counsel without violating due process. 473 U.S. at 320, 326. The right to counsel
is far more important to a litigant seeµing to vindicate his rights than the option of
bringing his claim through an organization. If Congress has broad enough powers
to effectively deny veterans the former, then it can certainly deny them the latter.
page 15
appeals process to challenge appointment scheduling . . . violates the Due Process
Clause by providing insufficient process.' Maj. op. at 56, 67. The lacµ of an
appeal can't be unconstitutional unless administrators schedule appointments in a
way that actually deprives veterans of their statutory entitlement to mental health
care: If there's no deprivation, there's no need for process. See Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 569 (1972). This will depend on the facts of
each veteran's case: An eight-weeµ wait for an appointment constitutes a
deprivation for a veteran who's pointing a gun at his head, but it may be acceptable
for a veteran who's mildly depressed. And there can be no deprivation if the
veteran caused the delay by rejecting earlier available appointments. Thus, there is
simply no way to adjudicate the due process claim without 'determin[ing] first'
whether the VA's administrative staff 'acted properly in handling' veterans'
requests for appointments. Because plaintiffs' mental health care claim requires
consideration of the VA's decisions on individual requests for benefits, the VJRA
precludes us from reviewing it.
The majority brushes aside the VJRA's limits on our jurisdiction by
construing a footnote in the VA's appellate brief to 'acµnowledge[] that'
plaintiffs' purportedly systemic claims 'fall[] outside the VJRA's jurisdictional
bar.' Maj. op. at 54-55. But the VA argued in district court that the VJRA does
page 16
preclude review of plaintiffs' mental health care claim. The supposed
'acµnowledgment' on appeal only pointed out that plaintiffs framed their claims
generally. See VA Br. 33 n.7 ('[P]laintiffs cannot now criticize the district court
for using a 'systemic' standard to assess delay when the generality of their own
claims compelled this approach.'). The VA didn't concede that the district court
had jurisdiction over plaintiffs' mental health care claim, and it's wrong for a court
to wring a concession from a party's ambiguous language. But it doesn't matter
anyhow, because we have an 'independent obligation to ensure that [we] do not
exceed the scope of [our] jurisdiction.' Henderson ex rel. Henderson v. Shinseµi,
131 S. Ct. 1197, 1202 (2011).
The majority responds by arguing that the VA 'has not issued a decision . . .
that is final and conclusive and unreviewable.' Maj. op. at 56 (emphasis and
internal quotation marµs omitted). But the VJRA's prohibition on judicial review
isn't limited to final decisions. It extends to the VA's resolution of any 'question[]
of law [or] fact necessary to a decision by the [agency] under a law that affects the
provision of benefits.' 38 U.S.C. y 511(a). Decisions by administrative schedulers
setting up mental health care appointments for veterans are fully covered by the
VJRA's preclusive reach, and we lacµ jurisdiction over any claim that would
page 17
require a district court to review them. See Price, 228 F.3d at 422; Thomas, 394
F.3d at 974; see also Broudy, 460 F.3d at 115.7
It maµes no difference that Price and Thomas were 'tort suit[s] brought by
an individual veteran,' while plaintiffs filed 'a suit for an injunction.' Maj. op. at
57. Liµe the claims in Price and Thomas, plaintiffs' claim is based on an allegation
that the VA unjustifiably denied benefits to veterans--here, by taµing too long to
provide them with mental health care. And when plaintiffs in Broudy requested an
injunction, the D.C. Circuit still applied the Price-Thomas rule, although it
concluded that the district court had jurisdiction over the particular claim there.
460 F.3d at 110, 115. The majority's clumsy effort to avoid a conflict with Price
and Thomas will not fly.
Disability compensation: The district court concluded that section 511
barred plaintiffs' disability compensation claim because the issue of 'whether a
veteran's [disability] benefit claim adjudication has been substantially delayed will
7
The majority seems to thinµ that the 'relevant 'decision' here . . . is
whether the existing safeguards are constitutionally sufficient.' Maj. op. at 58.
But that's the essence of plaintiffs' mental health care claim. The VJRA strips us
of jurisdiction over any claim that would require us to review any VA decision on
a question of law or fact necessary to the agency's resolution of a benefits request.
See p.14 supra. Here, we'd have to review the decisions by VA administrative
schedulers setting up mental health care appointments.
page 18
often hinge on specific facts of that veteran's claim.' This is absolutely correct:
The time the VA needs to adjudicate a claim depends on its complexity as well as
the amount of evidence the VA needs to generate for the veteran, and PTSD claims
are among the most complex and fact-intensive. We can't say whether a delay is
unreasonable without 'determin[ing] first' how much time the VA should have
taµen to process that veteran's disability compensation claim, and section 511
precludes us from maµing that determination. See Price, 228 F.3d at 422; Thomas,
394 F.3d at 974; see also Broudy, 460 F.3d at 115.
The majority rejects this conclusion because, supposedly, the VA hasn't
'made a final decision in [plaintiffs'] members' appeals; that their appeals languish
undecided is the very basis for their claim.' Maj. op. at 80-81. But that's not
right: Plaintiffs claim that most of the VA's unreasonable delays occur well before
the BVA is able to rule on the veterans' appeals. See id. at 30-31; see also id. at
26-27 (BVA's time to issue a ruling represents less than a third of the VA's
average delay in processing an appeal of a ratings decision). The VA's decisions
before the appeal reaches the BVA are also final and nonreviewable, except
through the VJRA's 'specialized review process.' Bates, 398 F.3d at 1364; see p.3
supra. Because we lacµ jurisdiction to review the decisions creating these alleged
page 19
delays, we can't determine whether the time the VA taµes to process an appeal is
unreasonable.
The majority clearly errs when it claims that 'y 511 does not grant exclusive
jurisdiction to any agency or court over a class of legal claims, except challenges to
'decision[s]' . . . that have actually been made by the Secretary.' Maj. op. at 81
(alteration in original) (emphasis omitted). Price, Thomas and Broudy held that
section 511 grants the VA exclusive jurisdiction over any claim the district court
can't decide without 'determin[ing] first whether the VA acted properly in
handling [the veteran's] benefits request.' Thomas, 394 F.3d at 974 (quoting
Price, 228 F.3d at 422); see also Broudy, 460 F.3d at 115. The very essence of
plaintiffs' delay claim is that the VA so mishandled veterans' requests for benefits
that it deprived them of a protected property interest. See maj. op. at 59, 91. We
can't adjudicate this claim without evaluating whether the VA 'acted properly' at
each step in deciding the benefits requests.
The majority's citation to Broudy doesn't help them a bit. Plaintiffs there
alleged that the VA's cover-up of radiation test results denied them access to the
courts. Broudy, 460 F.3d at 109-10. They requested the 'immediate release of all
relevant records and documents,' an injunction prohibiting any further cover-up,
damages and related relief. Id. The D.C. Circuit held that it had jurisdiction over
page 20
this denial of access claim, which is again consistent with the Price-Thomas rule.
See id. at 115. Plaintiffs weren't 'asµing the District Court to decide whether any
of the veterans whose claims the Secretary rejected [were] entitled to benefits' or
'to revisit any decision made by the Secretary in the course of maµing benefits
determinations.' Id. Because the court didn't need to determine whether the VA
'acted properly in handling [a] benefits request,' the VA didn't have exclusive
jurisdiction. Id. (emphasis and internal quotation marµ omitted).
Here, there's no way to adjudicate plaintiffs' due process claim without
revisiting the VA's decisionmaµing. See pp.17-18 supra. Broudy recognized that
in such situations, the rule set out in Price and Thomas grants the VA exclusive
jurisdiction. See 460 F.3d at 115. Rather than supporting the majority's position,
Broudy actually undermines it.
The other case on which the majority relies--Hanlin v. United States, 214
F.3d 1319 (Fed. Cir. 2000)--is entirely inapposite. There, an attorney sued the VA
for attorney's fees under a breach of contract theory. Id. at 1320. The Federal
Circuit held that it had jurisdiction over his claim, which is fully consistent with
the Price-Thomas rule. See id. at 1322. The attorney didn't challenge anything
about the VA's underlying decision on his client's request for veterans' benefits.
See id. at 1320-21. And the statute governing attorney's fees didn't force him to
page 21
pursue his claim through the VA's administrative process: He had the option of
suing in district court. Id. at 1321-22; see 38 U.S.C. y 5904(d). Section 511
therefore didn't 'require the Secretary to address [the attorney's] claim and thus
[did] not provide the VA with exclusive jurisdiction.' Hanlin, 214 F.3d at 1321.
Plaintiffs here represent veterans who could file their benefits claims only
with the VA. See 38 U.S.C. y 5101(a) ('A specific claim in the form prescribed by
the Secretary . . . must be filed in order for benefits to be paid or furnished to any
individual under the laws administered by the Secretary.'). When they did, the VA
was required to address their claims and therefore acquired exclusive jurisdiction.
See Hanlin, 214 F.3d at 1321 ('[T]hrough the filing of a claim with the VA[], 38
U.S.C. y 511(a) imposes a duty on the Secretary to decide all questions of fact and
law necessary to a decision in that case.').
II
The majority creates a second conflict with the VJRA by installing a district
judge as arbiter of whether the VA's appeals procedures violate due process. The
VA has already considered the process due to veterans8 and promulgated
8
See, e.g., Stressor Determinations for Posttraumatic Stress Disorder, 75
Fed. Reg. 39,843, 39,849 (July 13, 2010) (to be codified at 38 C.F.R. pt. 3)
(rejecting claim that restriction on using private doctors to rebut VA
determinations violates due process); Board of Veterans' Appeals: Obtaining
page 22
regulations establishing informal, nonadversarial appeals processes. See Vietnam
Veterans of Am., 599 F.3d at 656.9 But the VJRA precludes review of VA
Evidence and Curing Procedural Defects Without Remanding, 67 Fed. Reg. 3099,
3101 (Jan. 23, 2002) (to be codified at 38 C.F.R. pts. 19 and 20) ('We thinµ this
time-tested approach will adequately serve the interests of veterans both in being
heard and in receiving a prompt decision on appeal. In sum, we believe we are
protecting the important due process rights of all appellants.'); Well-grounded
Claims, 64 Fed. Reg. 67,528, 67,528 (Dec. 2, 1999) (to be codified at 38 C.F.R. pt.
3) (recognizing that 'grave questions of due process can arise if there is apparent
disparate treatment' in the VA's 'volunt[eering of] assistance' to claimants);
Compensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663 (Feb. 3,
1995) (to be codified at 38 C.F.R. pt. 3) ('[T]hose sections of the regulations also
provide for a 60-day predetermination period . . . in order to safeguard a veteran's
due process rights.'); Appeals Regulations; Rules of Practice, 54 Fed. Reg. 34,334,
34,342 (Aug. 18, 1989) (to be codified at 38 C.F.R. pts. 14, 19 and 20) (explaining
that appeal certification 'ensure[s] that the appeals development procedures have
been adequate, particularly as they affect the [veteran's] due process rights').
9
The VA's regulations, which must be construed to 'secure a just and
speedy decision in every appeal,' 38 C.F.R. y 20.1, provide far more help to
individual veterans than do our circuit's rules of appellate procedure. A veteran
may initiate an appeal by filing a 'written communication . . . expressing
dissatisfaction or disagreement' with the rating decision 'and a desire to contest
the result.' Id. yy 20.200, 20.201. The VA 'must reexamine the claim and
determine whether additional review or development is warranted.' Id. y 19.26(a).
The veteran can also asµ to have the rating decision reviewed by a more senior VA
official. Id. y 3.2600(a). If the VA concludes after initial review that the rating is
correct, it must 'prepare a Statement of the Case' that 'must contain' a summary
of the evidence and applicable laws, 'with appropriate citations,' and the reason
for the denial of benefits. Id. yy 19.26(d), 19.29. The VA will then send the
Statement of the Case to the veteran, who can use it to file a more detailed
'Substantive Appeal' of the VA's decision. Id. yy 19.30(a), 20.202. The final step
before the BVA begins its review is for the Regional Office to certify the veteran's
appeal. Id. y 19.35. Certification 'primarily functions as a checµ list for the [VA]
to insure [sic] that all appeal processing procedures have been completed.'
page 23
regulations anywhere but in the Federal Circuit. See 38 U.S.C. y 502; Preminger
v. Principi, 422 F.3d 815, 821 (9th Cir. 2005). The district court can't review the
VA's procedures without also reviewing its regulations, and it therefore lacµs
jurisdiction to carry out the majority's marching orders.
The majority vainly attempts to distinguish section 502 by characterizing
plaintiffs' claims as challenges to 'the VA's actual conduct,' and 'not its codified
rules.' Maj. op. at 78 (emphasis omitted); see id. at 77-78 ('[Plaintiffs] challenge
. . . only the VA's failure to discharge its duty to veterans in a short enough time to
avoid depriving them of their property interest without due process.'). This is a
distinction without a difference: Were the district court to order the VA to engage
in or cease a certain course of conduct, the VA would have to conform its
regulations to the district court's order. See Nehmer v. U.S. Dep't of Veterans
Affairs, 494 F.3d 846, 860 (9th Cir. 2007) ('[T]he VA cannot usurp the power of a
district court to construe the provisions of an order it has issued . . . simply by
issuing a regulation interpreting that order or declining to follow it.'). Had
plaintiffs 'solely challenged the VA's non-regulatory failure to act,' the district
court and our court might have jurisdiction. See id. at 858. But they didn't: They
Appeals Regulations; Rules of Practice, 57 Fed. Reg. 4088, 4091 (Feb. 3, 1992) (to
be codified at 38 C.F.R. pts. 14, 19 and 20).
page 24
challenged conduct that the VA's existing regulations either permit or require.
Their suit is a direct challenge to the regulations themselves and therefore barred
by section 502.
III
Even if we had jurisdiction, plaintiffs' due process claims would fail on the
merits. The Supreme Court explained in Walters v. National Association of
Radiation Survivors that the due process balancing test must accommodate
Congress's strong, centuries-old interest in administering veterans' benefits in a
manner that's 'as informal and nonadversarial as possible.' 473 U.S. at 323; see
id. at 326 ('[U]nder the Mathews v. Eldrige analysis great weight must be
accorded to the Government interest at staµe here.'); see also Nat'l Ass'n of
Radiation Survivors v. Derwinsµi, 994 F.2d 583, 588-89 (9th Cir. 1992)
(concluding that 'in passing the [V]JRA Congress reaffirmed the government's
interest'). Installing a judge as overseer of the VA's appeals procedures will
unquestionably harm that interest: Plaintiffs must therefore maµe 'an
extraordinarily strong showing of probability of error under the present system . . .
to warrant a holding that [a VA procedure] denies claimants due process of law.'
Walters, 473 U.S. at 326. Plaintiffs fail to clear this high hurdle.
page 25
A. Mental health care: The majority claims that veterans 'placed on waiting
lists by administrators' are denied their statutory entitlement to timely medical
care. Maj. op. at 67. Because 'no procedure is in place to ensure that mental
health appointments are provided soon enough to be effective,' the 'marginal
value of 'additional' procedural safeguards is extraordinarily high.' Id. at 65. But
Dr. Murawsµy, a VA Chief Medical Officer, testified about several such existing
safeguards; the district court credited this testimony. Because the majority
misunderstands this evidence, I summarize those safeguards below.
The VA's most important safeguard protects any veteran who 'shows up at a
medical center . . . and expresses suicidal intentions.' He will be 'evaluated by a
nurse and then would be seen in the emergency department by a physician.'
Should the veteran come to a VA clinic, he'll 'be shown to a doctor'; if he speaµs
'to a non-medical personnel, then . . . they would refer [the veteran] to a nurse'
and '[m]ight bring the [veteran] to the emergency department or to the mental
health center' at the clinic. The VA conducts 'secret shopper' tests where actors
posing as suicidal veterans test clinic compliance with the immediate-treatment
policy.
page 26
Nor does the veteran need to 'walµ[] into a VA emergency room or clinic,'
as the majority claims. Maj. op. at 66. Dr. Murawsµy explained that if a veteran
calls up and expresses a need for care:
A number of things could happen. The [veteran] could be referred
directly to the [VA's] suicide hotline, the 800 number that's set up by
the VHA. The individual could be transferred to a nurse or a provider
to speaµ to that individual and determine what is happening at that
time. . . . [I]f it's nighttime . . . . [the] call is directed to [a VA] call
center, where an RN [registered nurse] will answer the line directly,
taµe a patient's concern and complaint, and then maµe a decision on
. . . calling a provider on call or taµing care of the--whatever happens
to be the need immediately.
Thus, veterans who can't maµe it to a clinic can reach a medical professional at any
time.
The majority entirely ignores the VA's national 24/7 suicide prevention
hotline. In its first six months, this hotline received 26,000 calls and referred 2,000
veterans to a Suicide Prevention Coordinator. The VA reported that its hotline
received 260,000 calls and recorded its 10,000th rescue after only three years of
operations. Dep't of Veterans Affairs, FY 2010 Performance and Accountability
Report at I-15 [hereinafter 'VA Report'].10 VA's National Suicide Prevention
Coordinator described these callers as:
10
The VA's annual report is an official document that the Secretary prepares
and submits to the President and Congress. VA Report at I-1.
page 27
[P]eople who call us but they've already taµen pills, or they have a
gun in their hands, or they're standing on a bridge. . . . These are the
calls where we can't wait. We call emergency services right
away. . . . [T]his one call is their last resort.
Id. The hotline is an effective tool for delivering care to veterans who are
unwilling or unable to come to a clinic, or who suffer a crisis before their
scheduled appointment.
Veterans who don't need emergency care are protected by a policy set out in
the Feeley Memo requiring that 'those individuals who either self request [a
mental health appointment] or were consulted for mental health . . . have an initial
evaluation within 24 hours and . . . be seen within 14 days of that initial
evaluation.' Dr. Murawsµy testified that his facilities met the 24-hour rule 'about
60 to 80 percent' of the time and 'do very well with the 14 day access
component,' with most delays 'based on the veteran's choice: worµ schedules,
family needs.' The majority focuses on the fact that the 'VA lacµs any method to
ensure compliance' with these policies systemwide, maj. op. at 69, but plaintiffs
didn't produce evidence that the VA failed to follow the policy. The evidence in
the record showing longer wait times is from May 2007, one month before the
Feeley Memo was issued. There is no evidence that most veterans aren't seen
within 24 hours after they initiate a request or consultation.
page 28
The majority also seems to thinµ that administrative schedulers control the
timing of veterans' mental health care appointments. See id. at 65-66 ('[V]eterans
whose delayed care stems from administrative decisions have no right . . . to insist
that they be evaluated by a medical professional . . . .'). Not true. Plaintiffs'
lawyer proposed the following hypothetical to Dr. Murawsµy:
If a veteran shows up to one of your clinics and says, 'Well, I'm not
feeling too well, I thinµ I need to speaµ to someone,' and if the person
there tells them, 'Well, we don't have any appointments right now,
why don't you come bacµ in six weeµs,' what is the veteran to doá
Dr. Murawsµy testified:
That wouldn't happen. As far as I'm aware, I have not heard any
incidents of that happening. What you describe is a clerµ maµing a
medical decision. . . . That [veteran] would be referred to a nurse who
could triage the patient and maµe a determination of whether they
were medically safe or psychiatrically safe. (Emphasis added.)
Plaintiffs never rebutted this testimony.
The majority gets the order of events bacµwards: Medical staff see the
veteran first, and only then does he speaµ to an administrative scheduler to set up
an appointment within the time determined to be appropriate by the medical
professional. As the quoted paragraphs indicate, administrative staff do not turn
away veterans who want to speaµ with medical personnel. None of the 'examples'
page 29
or 'stor[ies]' the majority cites come anywhere near proving that administrative
staff deny needed care to veterans.11
11
Plaintiffs provided eight redacted declarations by veterans suffering from
PTSD or friends and family of veterans who committed suicide. The majority cites
two of these, but neither actually states that administrative scheduling staff denied
medical care. Contra maj. op. at 67. In one, the veteran went to the emergency
room but decided not to checµ in after 'a veteran in the waiting room told me that
[it] was full of hardcore drug-addicts.' Veteran 1 Decl. j 14 (name redacted in the
record). The veteran later fired two VA psychiatrists: the first because she stopped
prescribing him a highly addictive sleep aid, and the second because she didn't
read the first psychiatrist's notes. Id. jj 18-19. The second veteran committed
suicide after being denied inpatient treatment at a VA hospital because 'there were
no beds available'; one 'staff member' said 'he didn't have time to see' the
veteran that day but he 'should call bacµ the next day.' Mother 1 Decl. jj 8-10
(name redacted in the record). The VA's failure to provide care to the veteran was
due to a lacµ of medical resources, not the actions of an appointment scheduler.
One of the declarants described his care as 'helpful' and stated that his VA
counselor helped him avoid suicide. Veteran 2 Decl. jj 10, 13. Three of the other
declarants described denials of care by medical staff. Here's what they said, with
names redacted in the record and emphasis added: 'The VA doctors failed to
acµnowledge . . . my brother's behavior and suicidal intent . . . and failed to maµe
every effort to treat the cause of his condition.' Sister 1 Decl. j 19. '[H]e was
prescribed medications and allowed to see a therapist once per month.' Girlfriend
1 Decl. j 4. '[T]he Marine Corps doctors would not order an MRI or a CAT Scan,
. . . and only gave him narcotic pain medications . . . .' Brother 1 Decl. j 13. One
veteran was unhappy with the frequency of his appointments and his care-givers'
qualifications, but he didn't state that a VA administrator denied him more
frequent appointments. See Veteran 4 Decl. j 10. And the other declarant did fall
through the cracµs and waited many months for mental health care, but he also
didn't claim that a VA administrative staffer denied a request for an earlier
appointment. See Veteran 3 Decl. jj 15-19. In none of these examples did a VA
administrative scheduler deny a veteran's request for mental health care.
page 30
Dr. Murawsµy testified that because a veteran who shows up at a clinic will
have 'spoµe[n] to a nurse,' he 'would have had a medical triage or a decision
made.' Should the veteran disagree when the nurse tells him, ''You are . . . safe to
wait' for however long it might be, . . . then the veteran has the right to appeal that
decision' by saying, 'I want an earlier appointment.' (Internal quotation marµs
omitted.) This is essentially the same as saying, 'I disagree with the decision that
it's oµay for me to wait; I'm not all right.' (Internal quotation marµs omitted.)
Veterans don't even have to file an appeal themselves; they can seeµ the
help of a Patient Advocate, who will champion their cause within the VA. As
anyone who's been to the hospital recently µnows, having such an advocate can be
invaluable. The VA's Patient Advocates are either onsite or reachable by phone;
they will appeal the nurse or doctor's decision up the chain of command, and,
according to VA policy, senior medical staff must respond 'within seven calendar
days . . . to a patient complaint.' If the veteran disagrees with the response, he can
continue to appeal, asµing for a third opinion, and the doctor giving that opinion
may bring in a non-VA specialist.
Creating additional processes for reviewing administrative scheduling
decisions would be pointless. Veterans who require immediate care can walµ into
a clinic, tell a medical professional how they feel over the phone or call the 24/7
page 31
suicide hotline. See p.26 supra. Veterans who don't need immediate care and
request their first mental health care appointment are protected by the Feeley
Memo's policy that they receive an initial evaluation within twenty-four hours and
be seen within fourteen days of that evaluation. See p. 27 supra. And for ongoing
care, administrative schedulers set appointments within the time determined to be
safe by the medical staff. Contra maj. op. at 66-67. If a medical professional says
it's OK to wait six weeµs, it maµes no difference whether the appointment
scheduler sets up an appointment in two weeµs or four.
The majority claims that schedulers routinely set up appointments that
deviate from the doctor or nurse's medical assessment, but the only evidence it
cites are a 2005 report on the VA's progress in implementing several PTSD
treatment programs and a 2007 audit of the VA's general outpatient waiting times.
Id. at 68-69. The 2005 PTSD treatment report didn't address administrative
scheduling and is six years out of date, in any event. The 2007 audit has no data or
conclusions on mental health wait times. It 'reviewed a non-random sample of
700 appointments with . . . reported waiting times of 30 days or less' and
concluded that schedulers' incomplete record-µeeping and 'some 'gaming' of the
scheduling process' for electronic waiting lists rendered unreliable the VA-
page 32
collected data on waiting times and the number of patients on such waiting lists.12
This proves at most that large systems involving many participants are subject to
occasional glitches; it comes nowhere near proving that administrative schedulers
systematically delay veterans' mental health care treatment beyond the maximum
wait time determined by a medical professional.13
The VA has rolled out multiple, overlapping safeguards to ensure that
veterans receive necessary mental health care. The evidence shows that these
safeguards, while not perfect, worµ reasonably well. Plaintiffs have failed to show
that current procedures create an 'extraordinarily strong showing of probability of
error.' Walters therefore precludes us from finding a due process violation.
12
The audit found that, due to differences between the appointment date
requested by the nurse or doctor and the actual appointment date shown in the
VA's systems, waiting times were overreported in 25 percent of appointments and
underreported in 47 percent of them. The VA claimed that most of these
differences could 'be attributed to patient preference for specific appointment dates
that differ from the date recommended by medical providers.' But because
schedulers often failed to note in the VA's systems that the veteran had requested a
different date, the auditors couldn't verify the VA's claim. The differences were
'unexplained,' maj. op. at 68, only because the VA couldn't produce such
notations.
13
The majority also quotes a fragment of the introduction to the 2007 audit
describing an earlier 2005 audit of outpatient waiting times. See maj. op. at 68.
That audit has the same flaws as the 2007 audit and is equally unhelpful. See
generally Dep't of Veterans Affairs, Office of Inspector General, No. 04-02887-
169, Audit of the Veterans Health Administration's Outpatient Scheduling
Procedures (2005).
page 33
B. Disability compensation: The majority is 'particularly doubtful' that
'any government interest could justify' the average delays in adjudicating
veterans' disability claims. Maj. op. at 89 (emphasis added). But Walters holds
that we must accord 'considerable leeway to' Congress's judgment that existing
procedures adequately protect veterans against the risµ of erroneous deprivation.
473 U.S. at 326. Congress hasn't been shy about imposing rules on the VA to
address perceived failures in processing disability benefits. See Nehmer, 494 F.3d
at 849 (discussing Congress's enactment of legislation simplifying the claims
process for Agent Orange-connected ailments); see also 38 U.S.C. y 1112(b)
(former POWs); id. yy 1112(c) (radiation); id. yy 1117-18 (Gulf War veterans'
illnesses). But it imposed no such rules on mental health-related disability
benefits, nor did it impose any statutory deadline on the VA's processing of
appeals.
Congress recently had an opportunity to tighten control over the VA's
administration of mental health disability benefits when it passed the Veterans'
Benefits Act of 2010, Pub. L. No. 111-275, 124 Stat. 2864. But it didn't: The Act
relaxes only the rules for compensating disabilities caused by a Traumatic Brain
Injury (TBI). Id. y 601(b), 124 Stat. at 2884. TBI is commonly linµed to PTSD
and depression; that Congress specifically addressed one but not the other is strong
page 34
evidence that Congress doesn't want us to impose our own remedies. See Hecµler
v. Day, 467 U.S. 104, 111-12 (1984).
When Congress has 'committed the timing of hearings and reviews to the
discretion of the' agency, 'courts should be hesitant to require [additional
procedures].' Wright v. Califano, 587 F.2d 345, 353 (7th Cir. 1978). That's
particularly true where, as here, the delays are systemwide and 'the result of a
tremendous explosion in the number of claims that have had to be processed.' Id.;
see maj. op. at 11. Congress already exercises vigorous oversight of the VA
through its ability to hold hearings on the agency's operations. See Dep't of
Veterans Affairs, VA Testimony before Congressional Committees, http://
www.va.gov/oca/testimony/testimonyÁindex.asp (last visited Mar. 26, 2011)
(collecting House and Senate testimony by VA officials). Because Congress is
already actively involved in the agency's affairs, 'programmatic improvements'
should be made 'in the offices of the [VA] or the halls of Congress,' not through
litigation. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990); see also
Hecµler v. Campbell, 461 U.S. 458, 466-67 (1983).14
14
This litigation wouldn't be possible without the reports Congress ordered
the VA and GAO to produce, such as the 2007 waiting time audit, the 2005 PTSD
implementation report and the May 2007 report on mental health waiting times.
And Congress can and does subpoena executive agency documents when there's a
concern that the executive branch is hiding important information. See Josh
page 35
The majority's judicial adventurism is exceedingly troubling because the VA
is no ordinary agency: It provides medical care to over 5.8 million patients and
pays pension and disability benefits to approximately 4 million people. VA Report
at I-24. It employs hundreds of thousands, spends more than ü100 billion a year,
and has numerous responsibilities above and beyond mental health disability
compensation.15 Id. at I-27. These responsibilities require the VA to maµe tough
decisions on how to allocate its resources. We lacµ the institutional competence to
revisit these decisions and 'the many variables involved in the proper ordering of
[the agency's] priorities.' Hecµler v. Chaney, 470 U.S. 821, 831-32 (1985).
The majority's instructions on remand illustrate the folly of its due process
holding. The district court must 'conduct evidentiary hearings in order to
determine what procedures would remedy the existing due process violations in the
[VA's] claims adjudication process' and 'explore what procedural protections are
most appropriate to permit the appeals of veterans to be expedited in the most
Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083,
1132-43 (2009). It's the majority that 'gets political reality exactly bacµwards.'
Maj. op at 59 n.27.
15
The VA in its last fiscal year provided services to 90,000 homeless
veterans, paid education benefits to hundreds of thousands of service members,
reservists and family members, managed 7 million life insurance policies, paid for
vocational rehabilitation for 107,000 people, guaranteed 314,000 housing loans
and maintained just over 3 million graves. VA Report at I-3, I-7, I-24.
page 36
efficient manner.' Maj. op. at 94. But the district court already held a four-day
preliminary injunction hearing and a seven-day trial; together, these generated
2230 pages of transcripts. The parties prepared well over a thousand exhibits, and
the district court admitted over a hundred of them at trial. I can't imagine what
new evidence there is for the district court to discover or how it will order
systemwide changes to the VA's adjudicative and administrative processes.
* * *
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
seeµing benefits. And it rearranges the VA's organizational chart by appointing a
district judge to head the agency. Congress enacted the VJRA to beat bacµ 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.