December 14, 2011 (Courthouse News Service) – Veterans appeared before the full 9th Circuit on Tuesday to secure better treatment for service members with mental health issues. In May, a three-judge panel of the court took the rare step of ordering the Department of Veterans Affairs to implement sweeping changes in the way it handles referrals and claims that are too often “mooted by death.” The court agreed that long delays in the treatment of veterans with post-traumatic stress disorder and other mental health issues violate soldiers’ constitutional rights. But the judges vacated that decision last month, agreeing to rehear the case before the full court. At the hearing on Tuesday, an attorney for the veterans said that “more than 85,000 veterans languished on waiting lists for mental health care,” when the original complaint was filed in 2007, despite a statute requiring the VA to conduct mental health assessments within 30 days of a patient request. These delays effectively negated treatment access, a systemic problem that requires intervention by the federal courts, Gordon Erspamer with Morrison Foerster told the judges. Veterans for Common Sense and Veterans for United Truth sought a permanent injunction in 2007 to force the VA to reform its claims process, but U.S. District Judge Samuel Conti found that such an order was beyond his power. One member of the 9th Circuit agreed back in May, dissenting from the majority that overturned Conti’s decision. Chief Judge Alex Kozinski had said that his colleagues overstepped the court’s power, issuing a decision that “tramples over … strict jurisdictional limits.” ”The majority hijacks the Department of Veterans Affair’s mental health treatment and disability compensation programs and installs a district judge as reluctant commandant-in-chief,” he wrote. But the panel majority noted that up to 18 veterans commit suicide everyday, many of them while awaiting a health care referral that can take months. ”When the government harms its veterans by the deprivation at issue here, they are entitled to turn to the courts for relief,” according to the majority opinion authored by Judge Stephen Reinhardt. About 60 people gathered in the gallery for the rehearing Tuesday, with a quarter of them wearing “Veterans for Peace” shirts or the garrison hats worn by members of the group Veterans of Foreign Wars. Arguing for the Veterans Affairs Administration, Charles Scarborough echoed Kozinski’s dissent, saying that Congress had divested the courts of jurisdiction over decisions made by the secretary of Veterans Affairs that affect the provision of benefits. A systemic challenge based on a claim of unreasonable delays in providing benefits must be based on individual cases, and individual veterans have an avenue for such redress through the VA’s appeals process, Scarborough said. ”The best reading of [the statute that bars federal review of VA claims] that we have is the one that Judge Kozinski explained, which is when you’re asked to look at whether the VA acted properly in determining claims and benefits … you can’t avoid [the statute] by stating your claims at such a high level of generality that they don’t appear to implicate any specific case,” Scarborough told the court. Even if you can get around the statutory bar, Scarborough told the court that “you run into a standing issue.” No individual veteran is injured by “average delays,” he added.
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