Sense v. Shinseki, 08–16728.

• Decision Date: 10 May 2011
• Docket Number: No. 08–16728.,08–16728.
• Citation: 644 F.3d 845
• Parties: VETERANS FOR COMMON SENSE, a District of Columbia nonprofit organization; Veterans United for Truth, Inc., a California nonprofit organization, representing their members and a class of all veterans similarly situated, Plaintiff–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, Oakland Regional Office, Department of Veterans Affairs; United States of America, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

644 F.3d 845

11 Cal. Daily Op. Serv. 5612

2011 Daily Journal D.A.R. 6740

VETERANS FOR COMMON SENSE, a District of Columbia nonprofit organization; Veterans United for Truth, Inc., a California nonprofit organization, representing their members and a class of all veterans similarly situated, Plaintiff–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, Oakland Regional Office, Department of Veterans Affairs; United States of America, Defendants–Appellees.

No. 08–16728.

United States Court of Appeals, Ninth Circuit.

Argued Aug. 12, 2009.Submitted Sept. 14, 2009.Filed May 10, 2011.

Gordon P. Erspamer (argued), Heather A. Moser, Ryan G. Hassanein, M. Natalie Naugle, and Stacey M. Sprenkel, Morrison & Foerster LLP, San Francisco, CA; and Sidney M. Wolinsky, Ronald Elsberry, Katrina Kasey Corbit, and Jennifer Bezoza, Disability Rights Advocates, Berkeley, CA, for the plaintiffs-appellants.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.Appeal from the United States District Court for the Northern District of California, Samuel Conti, District Judge, Presiding. D.C. No. 3:07–cv–03758–SC.Before: ALEX KOZINSKI, Chief Judge, PROCTER HUG, JR. and STEPHEN REINHARDT, Circuit Judges.Opinion by Judge REINHARDT; Dissent by Chief Judge KOZINSKI.

OPINION

REINHARDT, Circuit Judge:

On an average day, eighteen veterans of our nation's armed forces take 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 weeks 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. Like the cavalry of Alfred, Lord Tennyson's “Charge of the Light Brigade,” these veterans may neither “make 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 takes 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 make 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), seek injunctive and declaratory relief to remedy the delays in (1) the provision of mental health care and (2) the adjudication of service-connected death and disability compensation claims by the VA. Among other issues, Veterans ask 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 taken 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 acknowledge 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 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 make 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 like 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 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 unchecked 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 stakes are so high for so many, we must, with whatever reluctance, fulfill our obligation to take 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 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 seek. 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 lacked 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.

Background

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 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. § 1710. This care is provided by the Veterans Health Administration. The VHA is required by law to provide free medical care to all...