In Federal Lawsuit Forcing VA to Provide War-Torn Veterans Timely Mental Health Care, Judges Say ‘Not Our Job’

Full 9th Circuit Pulls Plug on Veterans Affairs Overhaul

Ruling means veterans become second class citizens, do not have same rights to constitutional protections as non-veterans, lawyer says

by Tim Hull
Courthouse News Service, May 7, 2012

(CN) – It is up to Congress, the president and other courts to reform the Veterans Administration’s heavily criticized handling of increasingly common mental health care requests, a full panel of the 9th Circuit ruled Monday.

9th District Court of Appeals Judge Jay S. Bybee wrote the court’s majority opinion May 7, 2012 which denied veterans judicial review of a constitutional right to timely mental health care and benefits from the VA.

The federal appeals court in San Francisco said it lacks jurisdiction to order an overhaul of the VA’s mental health care system, which is overburdened by claims from troubled soldiers returning from a decade of war in Afghanistan and Iraq.

The ruling by an 11-judge, en banc panel could effectively end a class action brought by the advocacy groups Veterans for Common Sense (VCS) and Veterans United For Truth. The groups claimed in their 2007 lawsuit that delays in mental health care too often result in the suicide of the soldier seeking help, amounting to a violation of service members’ rights to due process.

“VCS’s complaint sounds a plaintive cry for help, but it has been misdirected to us,” Judge Jay Bybee wrote for the 10-member majority. “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it.”
Quoting Abraham Lincoln’s second inaugural address, Bybee added that “Congress and the president are in far better position ‘to care for him who shall have borne the battle, and for his widow and his orphan.'”

Moreover, requests for judicial review related to veterans’ benefits belong in the U.S. Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit, the panel found.

Gordon Erspamer, a Morrison & Foerster attorney for the veterans groups told Courthouse News that he planned to take the case to the U.S. Supreme Court.

Rights are meaningless if you have no way to enforce them — Gordon Ersparmer, veterans attorney

“We believe that this decision is fundamentally wrong,” Erspamer said in a phone interview. “If it were correct, the doors of our courthouses are closed to veterans, even on constitutional claims.”
The U.S Court of Appeals for Veterans Claims has the power only to review individual claims and cannot address systemic problems in the VA, Erspamer said.

“Rights are meaningless if you have no way to enforce them,” Erspamer said. “This treats veterans as second class citizens; everyone else enjoys the right to file constitutional claim in the federal courts.”

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