Vets ask court to ensure VA keeps commitments

Suicides among veterans average 18 a day, by the government’s estimation, and a backlog of disability claims for post-traumatic stress disorder and other untreated ailments approaches 1 million.

With a massive military drawdown from Iraq and Afghanistan potentially on the horizon, lawyers for the veterans want a federal appeals court to order the Department of Veterans Affairs to make good on the nation’s commitment to take care of those wounded in mind as well as body.

It is a task that a lower court already has deemed beyond the power of the judiciary to correct. And the latest appeal, to the 9th U.S. Circuit Court of Appeals, has been met with reluctance by the judges to tell a government bureaucracy how it should conduct its affairs.

“Go and get a sandwich together,” Chief Judge Alex Kozinski suggested recently, urging the lawyers to work on an out-of-court settlement. He said he could see good will on both sides “to do the right thing for our veterans who fought and bled for our country.”

Kozinski’s Solomon-like departure from the three-judge panel’s usual role of hearing arguments and issuing a decision has given the lawyers until Sept. 1 to try to work out a solution through the 9th Circuit’s mediation services.

The suggestion prompted skepticism on both sides.

“This case has already been determined to be not susceptible to mediation,” Charles Scarborough of the Department of Justice told the court, which heard arguments Aug. 12.

Government policy prohibits Scarborough from saying anything more than what was put on the record at the hearing, said Justice Department spokesman Charles Miller.

Gordon Erspamer, the San Francisco lawyer with Morrison & Foerster who is representing the veterans pro bono, said he also couldn’t comment on the likelihood of a negotiated settlement, but said that any such agreement would involve time-consuming consultations within the federal executive hierarchy.

“The government is always very difficult to deal with in cases that involve constitutional issues,” Erspamer said. “I don’t mean that they’re mean-spirited or rude, it’s just that the issues are difficult for them to ever agree upon in a solution out of court.”

Scarborough and Erspamer faced off before Kozinski and two other 9th Circuit judges, Stephen Reinhardt and Procter Hug Jr. All three judges questioned the lawyers about the delays and the consequences of mental health problems that have not been addressed. Erspamer said it’s a crisis that will only escalate in the next year or two when the U.S. military draws down hundreds of thousands of troops from war zones.

Veterans for Common Sense and Veterans United for Truth brought the suit two years ago, alleging systemic failures in the government’s processing of disability claims and appeals of denied coverage.

Erspamer told the panel that 3,000 veterans die each year while their appeals are pending, a process that takes almost two years on average. An internal e-mail from the veterans department introduced in last year’s trial also disclosed the staggering suicide figures, an annual rate of more than 6,500 from a variety of causes but many suspected to be acts of despair by veterans with untreated post-traumatic stress disorder.

Scarborough said that only about 4 percent of department decisions about care or coverage are subject to “significant delays” and that pilot programs to improve on the timely delivery of services were under way.

Kozinski asked whether the other 96 percent were satisfied customers or if many might have become frustrated with the process and abandoned their claims.

Erspamer said that was precisely what was happening, with even those with the most severe mental illnesses being turned away from veterans hospital emergency rooms and told to get on the waiting list for appointments.
“Then they go home and kill themselves,” Erspamer told the court.

The judges appeared perplexed, though, as to how they could effect change with a court order.

“How do we go about telling an agency ‘You’ve got to work faster?’ How do you implement something like that?” Kozinski asked Erspamer. “If we find in your favor, what’s to keep the federal courts from taking over and running any agency of government? We’ve got lots of agencies that are slow.”

That was the view of U.S. District Judge Samuel Conti, who agreed after an April 2008 trial that veterans suffered unjust claim denials and unacceptable delay in treatment but said the problem is beyond the court’s ability to remedy.

If no compromise can be reached by the lawyers by Sept. 1, the judges will deliberate over the two sides’ arguments and eventually issue an opinion and possible order.