Veterans for Common Sense v. Shinseki, No. 08–16728.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBYBEE
Citation2012 Daily Journal D.A.R. 5907,12 Cal. Daily Op. Serv. 4940,678 F.3d 1013
Decision Date07 May 2012
Docket NumberNo. 08–16728.
PartiesVETERANS 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, Plaintiffs–Appellants, v. Eric K. SHINSEKI, Secretary of Veterans Affairs; United States Department of Veterans Affairs; Steven L. Keller, Acting Chairman, Board of Veterans' Appeals; Allison A. Hickey, Under Secretary, Veterans Benefits Administration; Bradley G. Mayes, Director, Compensation and Pension Service; Robert A. Petzel, Under Secretary, Veterans Health Administration; Ulrike Willimon, Veterans Service Center Manager, Oakland Regional Office, Department of Veterans Affairs; United States of America, Defendants–Appellees.

678 F.3d 1013
12 Cal.
Daily Op. Serv. 4940
2012 Daily Journal D.A.R. 5907

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, Plaintiffs–Appellants,
v.
Eric K. SHINSEKI, Secretary of Veterans Affairs; United States Department of Veterans Affairs; Steven L. Keller, Acting Chairman, Board of Veterans' Appeals; Allison A. Hickey, Under Secretary, Veterans Benefits Administration; Bradley G. Mayes, Director, Compensation and Pension Service; Robert A. Petzel, Under Secretary, Veterans Health Administration; Ulrike Willimon, 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 and Submitted En Banc Dec. 13, 2011.
Filed May 7, 2012.


[678 F.3d 1015]


Gordon P. Erspamer, Ryan G. Hassanein and Stacey M. Sprenkel, Morrison & Foerster LLP, San Francisco, CA; Deanne E. Maynard, Morrison & Foerster LLP, Washington, DC; and Sidney M. Wolinsky and Ronald Elsberry, Disability Rights Advocates, Berkeley, CA, for the plaintiffs-appellants.

Charles W. Scarborough, United States Department of Justice, Civil Division, Appellate Section, Washington, D.C., for the defendants-appellees.


Appeal from the United States District Court for the Northern District of California, Samuel Conti, Senior District Judge, Presiding. D.C. No. 3:07–cv–03758–SC.
Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge BYBEE; Dissent by Judge SCHROEDER.

OPINION

BYBEE, Circuit Judge:

After a decade of war, many of our veterans are returning home with physical and psychological wounds that require competent care. Faced with the daunting task of providing that care, as well as adjudicating the claims of hundreds of thousands of veterans seeking disability benefits, the Department of Veterans Affairs (“VA”) 1 is struggling to provide the care and compensation that our veterans deserve. See, e.g., Review of Veterans' Claims Processing: Are Current Efforts Working? Hearing Before the S. Comm. on Veterans' Affairs, 111th Cong. 9 (2010) (statement of Michael Walcoff, Acting Under Secretary for Benefits, U.S. Dep't of Veterans Affairs) (“Secretary Shinseki, the Veterans Benefits Administration (VBA), and the entire VA leadership fully share the concerns of this Committee, Congress as a whole, the Veterans Service Organizations (VSOs), the larger Veteran community, and the American public regarding the timeliness and accuracy of disability benefit claims processing.”).

Two nonprofit organizations, Veterans for Common Sense and Veterans United

[678 F.3d 1016]

for Truth (collectively “VCS”), ask us to remedy delays in the provision of mental health care and the adjudication of service-connected disability compensation claims by the VA. VCS's complaint leaves little doubt that affording VCS the relief it seeks would require the district court to overhaul the manner in which the VA provides mental health care and adjudicates claims for benefits. VCS would have the district court, among other things, order the implementation of new procedures for handling mental health care requests, create an accelerated appeals process for claims, and convert the claims-adjudication process into an adversarial proceeding.

We conclude that we lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans' benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. See38 U.S.C. §§ 511, 7252, 7292; see also Yakus v. United States, 321 U.S. 414, 443, 64 S.Ct. 660, 88 L.Ed. 834 (1944). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). We conclude that the majority of VCS's claims must be dismissed for lack of jurisdiction. And where we do have jurisdiction to consider VCS's claims, we conclude that granting VCS its requested relief would transform the adjudication of veterans' benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 323–24, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). The Due Process Clause does not demand such a system.

As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction. We conclude that the district court lacked jurisdiction to resolve VCS's claims for system-wide implementation of the VA's mental health care plans, as well as VCS's request for procedures intended to address delays in the provision of mental health care. We similarly determine that the district court lacked jurisdiction to consider VCS's statutory and due process challenges to delays in the system of claims adjudication. We do conclude, however, that the district court had jurisdiction to consider VCS's claims related to the adjudication procedures in VA Regional Offices and that the district court properly denied those claims on the merits.

We therefore affirm the district court in part, reverse in part, and remand with instructions to dismiss the case.

I. FACTUAL AND PROCEDURAL BACKGROUND 2

There are approximately 25 million veterans in the United States and, as of May 2007, between 5 and 8 million of those veterans were enrolled with the VA. 3 A

[678 F.3d 1017]

significant number of veterans, many of whom have returned recently from operations in Iraq and Afghanistan, suffer from service-related disabilities, and therefore seek mental health care from the Veterans Health Administration (“VHA”) and disability compensation from the Veterans Benefits Administration (“VBA”).4

A. The Suit

In 2007, two nonprofit organizations, Veterans for Common Sense and Veterans United for Truth, filed suit in the Northern District of California. On behalf of themselves, their members, and a putative class of veterans with post-traumatic stress disorder (“PTSD”) eligible for or receiving medical services, and veterans applying for or receiving service-connected disability benefits, VCS seeks sweeping declaratory and injunctive relief. Such relief is warranted, VCS alleges, because the VA's handing of mental health care and service-related disability claims deprives VCS of property in violation of the Due Process Clause of the Constitution and violates the VA's statutory duty to provide timely medical care and disability benefits. VCS specifically disavows seeking relief on behalf of any individual veteran, but instead challenges “average” delays in the VA's provision of mental health care and disability benefits. Compl. ¶¶ 12, 38–39. We briefly summarize VCS's claims.

First, with respect to the VHA's duty to provide veterans with mental health care, VCS challenges VHA procedures that allegedly result in delayed care. Id. ¶¶ 31, 184–200, 277. VCS also challenges the lack of procedures for veterans to expedite that care. Id. ¶¶ 31, 277. VCS therefore asked the district court to declare, among other things, that the lack of procedures to remedy delays in the provision of medical care and treatment violates due process. Id. ¶¶ 31, 258–60. VCS also seeks to enjoin the VA from permitting protracted delays in the provision of mental health care and to compel the VHA to implement governmental recommendations for improving the provision of mental health care. 5Id. ¶¶ 31, 277.

Second, VCS challenges VBA delays in the adjudication and resolution of disability-compensation claims under both the Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment. Id. ¶¶ 31, 145–83, 277. VCS asserts that the adjudication of those claims, which begins at one of the VA's 57 Regional Offices and proceeds through the Board of Veterans' Appeals, the Court of Appeals for Veterans Claims (“Veterans Court”),6 an Article I court, 38 U.S.C. §§ 7251, 7266(a), and the Federal Circuit, 38 U.S.C. § 7292(a), is plagued by unreasonable delays that result in a functional denial of benefits. Compl.¶¶ 31, 145–83, 277. VCS therefore seeks both declaratory and injunctive relief to remedy those delays. Id. ¶ 277.

Finally, VCS challenges the constitutionality of numerous VBA practices and procedures, including the absence of trial-like

[678 F.3d 1018]

procedures at the VA's Regional Offices. Id. ¶¶ 30, 201–03, 262–63. VCS also seeks to enjoin the VBA from prematurely denying PTSD and other service-connected disability compensation claims. Id. ¶¶ 31, 277.7

B. The District Court Denies VCS Relief

After the district court denied in large part the VA's motion to dismiss, VCS requested a preliminary injunction on its mental health claims. The district court held an evidentiary hearing, but deferred ruling on the preliminary injunction, instead merging the request with a bench trial on the merits that would address all of VCS's claims.8

The district court held a seven-day bench trial and, two months later, issued a comprehensive Memorandum of Decision, Findings of Fact and Conclusions of Law. See Veterans for Common Sense v. Peake (“ Veterans ”), 563 F.Supp.2d 1049 (N.D.Cal.2008). The district court denied VCS's various claims and concluded that ordering the relief requested by VCS would draw the district court into...

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153 practice notes
  • Durden v. Colvin, Civ. No. 1:15–cv–0118
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2016
    ...to a rating decision. E.g. Veterans for Common Sense v. Shinseki, 644 F.3d 845, 856–58 (9th Cir.2011)opinion vacated on other grounds, 678 F.3d 1013 (9th Cir.2012) ; VA Adjudication Procedures Manual (M21–1 Part 3). The initial rating specialist is called a "Rating Veterans Service Represen......
  • Axon Enter., Inc. v. Fed. Trade Comm'n, No. 20-15662
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 28, 2021
    ...111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) ; Gebhardt v. Nielsen , 879 F.3d 980 (9th Cir. 2018) ; Veterans for Common Sense v. Shinseki , 678 F.3d 1013 (9th Cir. 2012). Moreover, many of these cases fit within the implied preclusion framework because they consider whether the parties could have......
  • Katzman v. L.A. Cnty. Metro. Transp. Auth., Case No.: 13–CV–00438–LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 4, 2014
    ...is to look at the percentage of individuals who are subject to erroneous deprivation. See Veterans for Common Sense v. Shins eki, 678 F.3d 1013, 1035–36 (9th Cir.2012) (risk of erroneous deprivation of veteran's benefits was not high when approximately four percent of the total number of re......
  • Vietnam Veterans of Am. v. Cent. Intelligence Agency, No. C 09-0037 CW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 24, 2013
    ...a motion for reconsideration of this order, asserting that the Ninth Circuit's recent decision in Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (2012), compelled a different result. The Court rejected this argument, finding that "Veterans for Common Sense does not require reconsidera......
  • Request a trial to view additional results
153 cases
  • Durden v. Colvin, Civ. No. 1:15–cv–0118
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2016
    ...to a rating decision. E.g. Veterans for Common Sense v. Shinseki, 644 F.3d 845, 856–58 (9th Cir.2011)opinion vacated on other grounds, 678 F.3d 1013 (9th Cir.2012) ; VA Adjudication Procedures Manual (M21–1 Part 3). The initial rating specialist is called a "Rating Veterans Service Rep......
  • Axon Enter., Inc. v. Fed. Trade Comm'n, No. 20-15662
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 28, 2021
    ...111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) ; Gebhardt v. Nielsen , 879 F.3d 980 (9th Cir. 2018) ; Veterans for Common Sense v. Shinseki , 678 F.3d 1013 (9th Cir. 2012). Moreover, many of these cases fit within the implied preclusion framework because they consider whether the parties could have......
  • Katzman v. L.A. Cnty. Metro. Transp. Auth., Case No.: 13–CV–00438–LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 4, 2014
    ...is to look at the percentage of individuals who are subject to erroneous deprivation. See Veterans for Common Sense v. Shins eki, 678 F.3d 1013, 1035–36 (9th Cir.2012) (risk of erroneous deprivation of veteran's benefits was not high when approximately four percent of the total number of re......
  • Vietnam Veterans of Am. v. Cent. Intelligence Agency, No. C 09-0037 CW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 24, 2013
    ...a motion for reconsideration of this order, asserting that the Ninth Circuit's recent decision in Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (2012), compelled a different result. The Court rejected this argument, finding that "Veterans for Common Sense does not require recons......
  • Request a trial to view additional results

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