Vietnam Veterans Of Am. v. Shinseki

• Citation: 599 F.3d 654
• Decision Date: 19 March 2010
• Docket Number: No. 09-5260.,09-5260.
• Parties: VIETNAM VETERANS OF AMERICA and Veterans of Modern Warfare, Appellants v. Eric K. SHINSEKI, in his Official Capacity as Secretary of the Department of Veterans Affairs, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

599 F.3d 654

VIETNAM VETERANS OF AMERICA and Veterans of Modern Warfare, Appellants v. Eric K. SHINSEKI, in his Official Capacity as Secretary of the Department of Veterans Affairs, Appellee.

No. 09-5260.

United States Court of Appeals District of Columbia Circuit.

Argued: Feb. 12, 2010.

Decided: March 19, 2010.

Robert E. Cattanach argued the cause for appellants. With him on the briefs were Frederick G. Jauss IV and Creighton R. Magid.

Charles W. Scarborough, Attorney, U.S Department of Justice, argued the cause for appellee. With him on the brief was William G. Ranter, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, and Ronald J. Wiltsie II, Attorney, entered appearances.

Before: GINSBURG and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge:

Appellants are two veterans associations appealing the district court's dismissal of their suit alleging that the Department of Veterans Affairs violated the APA and the Constitution (due process clause) because of the average time it takes the VA to process veterans' claims. The district court held that it lacked jurisdiction and we agree, although for somewhat different reasons.

I

Congress has created a number of programs that provide monetary benefits to America's veterans and their families. One of the largest such programs provides disability benefits to veterans for servicerelated injury or disease. Approximately 3.4 million veterans currently receive disability benefits from the VA.

Veterans who seek disability benefits must file a claim with the VA at one of its 57 regional offices throughout the country. The VA is required by statute to assist veterans in developing evidence to support their claims.¹ The VA inter alia arranges for and provides medical examinations when necessary, seeks all government records relevant to a claim (such as military service records and treatment records from VA medical facilities), and makes reasonable efforts to acquire non-federal records identified by the veteran. Once all relevant evidence has been gathered, a VA "rating specialist" evaluates the claim. This process is informal and non-adversarial. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 309-10, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). The rating specialist first determines whether the disability is connected to eligible service, and if so, determines a percent disability rating, a figure that, along with a statutory schedule, determines the amount of assistance to which the veteran is entitled. The VA issues award letters to veterans entitled to compensation and informs veterans whose claims are denied of the reasons for their denial.

Veterans who wish to contest this initial decision may do so. They may (but are not required to) elect to have their claim reviewed by a more senior rating specialist within the regional office where the claim was initially adjudicated and, if still dissatisfied, they may appeal to the Board of Veterans' Appeals. The Board, led by a chairman responsible to the Secretary of the VA, conducts de novo review of presented claims. While the Board only decides appeals after a claimant has been given the opportunity for a hearing, these proceedings are also quite informal. See id at 310-11. Adverse decisions by the Board can subsequently be appealed exclusively to the United States Court of Appeals for Veterans Claims ("CAVC"), an independent Article I federal court. The CAVC may review all legal issues, including constitutional claims, and, notably, has the power to "compel action of the Secretary unlawfully withheld or unreasonably delayed." Decisions of the CAVC may be appealed to the United States Court of Appeals for the Federal Circuit which has authority to "decide all relevant questions of law, including interpreting constitutional and statutory provisions." ² Further review, of course, may be sought in the United States Supreme Court.

Congress has divested other federal courts of authority to review certain decisions relating to benefits. Thus, 38 U.S.C § 511 provides that, "[t]he 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 depen-dents or survivors of veterans, " but, subject to a few carefully defined exceptions (including the appeals process outlined above), "the 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." Congress, moreover, specified that challenges to VA regulations may only be brought in the Federal Circuit.

Over the last several years, various entities including the Government Accountability Office, veterans service organizations and congressional committees have raised concerns regarding the timeliness with which the VA system processes claims for benefits. In a 2005 report to the Senate Committee on Veterans' Affairs, the GAO noted "large numbers of pending claims and lengthy processing times" in the VA's disability program, and subsequent GAO testimony to a House of Representatives subcommittee indicated that the VA's inventory of pending claims and their average time pending had increased "significantly" over the previous 3 years.³

Congress has taken some steps to speed up the claim processing. In 2007, for example, Congress provided funding to the VA to hire an additional 3, 100 employees the vast majority of which were hired into the division responsible for processing disability claims. Congress also recently enacted a law requiring that the VA establish a pilot program in 10 of its regional offices under which fully developed disability claims (a subset of claims where no additional evidence need be collected) are adjudicated within 90 days.⁴ Congress has not, however, enacted any statutory deadlines that would require the VA to adjudicate all disability claims within a definite time period.

Unsatisfied with these measures, two advocacy groups for veterans, Vietnam Veterans of America and Veterans for Modern Warfare filed a complaint which alleged that the VA was in violation of the Administrative Procedure Act and the Due Process Clause of the Constitution (as well as federal statutes that require the VA to provide "expeditious treatment" to claims that are remanded from the CAVC to the VA, see 38 U.S.C. § 7112, and from the Board back to the VA regional office, see id. at § 5109B) because it generally takes too long for a veteran to get relief. The plaintiffs sought a declaratory judgment as well as an injunction requiring the VA to issue "an initial decision on every veteran's claim for benefits within 90 days" and to "ensure that appeals of claims decisions are resolved within 180 days."

The complaint seeks a ruling that the VA's entire disability benefits processing system is illegal. It does not suggest the time the VA has taken to adjudicate the claim of any single veteran is unreasonably long, but rather alleges that the average time the VA has taken to reach initial decisions at the regional office stage, the average time the Board takes to resolve appeals, and the average time it takes the regional offices to resolve claims remanded by the Board are all unreasonably long. The plaintiffs, moreover, actually disavow any intention of seeking relief in any individual claim by stating, "[t]o the extent any of the facts presented herein apply to individuals rather than to veterans as a whole, they are intended for illustrativepurposes 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."

The district court denied the plaintiffs' motion for a preliminary injunction and, in a published order, granted the VA's motion to dismiss on the grounds that plaintiffs lacked standing because they sought to impose on the VA a "uniform timeline for assessing these claims even though the claims are not monolithic." And the court stated that the plaintiffs were not "likely to have the injuries redressed by a favorable decision due to the plaintiffs' failure to state a claim with respect to a violation of the APA or the Due Process Clause." (emphasis added).

II

Appellants contend that the district court conflated the merits of the case with standing. We agree. Whether or not plaintiffs stated a claim—whether they had a cause of action—goes to the merits of the case and, as we have held the merits must he assumed when considering standing. City of Waukesha v. EPA 320 F.3d 228, 235 (D.C.Cir.2003) (per curiam). That is not what is meant by redressability—the element of standing that is virtually always merely the reciprocal of causation. Dynalantic Corp. v. Dep't of Defense, 115 F.3d 1012, 1017 (D.C.Cir.1997). As a separate element, it is implicated only when the court's power to redress an injury caused by an illegal act is independently impaired. Renal Physicians Ass'n v. HHS, 489 F.3d 1267, 1278 (D.C.Cir.2007).

But the government raises other jurisdictional arguments. Perhaps most prominent is its contention that § 511 precludes district court (and our) jurisdiction because appellants are essentially challenging the Secretary's conclusions of "law and fact necessary to a [benefits] decision." Appellants respond that they are not challenging the Secretary's actual decision in any case but rather his failure to decide cases in a timely manner. Yet, one might think that inherent in any adjudicatory decisionmaking process is an implicit determination as to when the decision maker will get to the case. And in this situation we are not dealing with a true judicial-like role, but rather institutional decisionmaking by a huge department, implicating resource allocation and management practices in...