In one of the most important landmark legal cases involving veterans’ access to healthcare and disability benefits in decades, two veterans groups filed a petition with the U.S. Supreme Court on September 5, 2012, asking the Court to hear the case, Veterans for Common Sense v. Shinseki.
The Court will determine in the next few months if it will hear arguments in the case centered on one key issue: whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in the Department of Veterans Affairs’ (VA’s) provision of mental health care and death and disability compensation.
Veterans for Common Sense (VCS) and Veterans United for Truth (VUFT), represented pro bono by Morrison & Foerster LLP and Disability Rights Advocates, submitted a 33-page petition for writ of certiorari requesting a Supreme Court review. The two non-profit organizations wrote:
The Court should grant review now because any delay is at the expense of our Nation’s veterans. Indeed, this case likely presents the only opportunity for this Court to intervene in time for the veterans of the Iraq and Afghanistan wars. Combat veterans are entitled to free health care from the VA for only 5 years after their service ends. If left unreviewed, the Ninth Circuit’s decision will condemn these ‘veterans to suffer intolerable delays inherent in the VA system.’
VA Problems Persist
As of November 2012, VA faces a crisis of chronic delays and errors processing veterans’ disability compensation claims. More than 1,150,000 veterans are now waiting for VA to decide a disability claim. The Veterans Benefits Administration (VBA) reports 900,000 disability claims pending an average of eight months. The Board of Veterans’ Appeals reports an additional 250,000 appealed claims pending an average of four more years. In Congressional testimony on June 19, 2012, VA’s Office of the Inspector General reported how VA made errors in 30 percent of nearly 5,000 claims reviewed during inspections at 50 of VA’s regional offices. Thousands of veterans die each year while their disability claims languish at VA.
Serious challenges also face veterans seeking mental health care. According to the Spokesman-Reviewnewspaper, “veterans are waiting an average of 80 days to meet with a mental health care provider at the Spokane VA Medical Center, falling far short of the 14-day goal set by Veterans Affairs…. Long wait times are ‘completely unacceptable,’ said Sen. Patty Murray (D-WA), and present the VA with a disturbing discrepancy: ‘This report shows the huge gulf between the times VA says it takes to get veterans mental health care and the reality of how long it actually takes veterans to get seen at facilities across the country’ (John Stucke, April 24, 2012). Eighteen veterans commit suicide each day, according to VA.
The VCS/VUFT lawsuit was filed in U.S. District Court in July 2007. After a two week trial in April 2008, the District Court ruled in favor of VA in June 2008. The District Court said it lacked jurisdiction to overhaul the 300,000-employee, $140 billion per year agency. The District Court ruling detailed many serious delays and obstacles facing veterans when seeking medical care or disability benefits from VA.
In May 2010, a three-judge panel of the Ninth Circuit Court of Appeals decided in favor of VCS and VUFT, prompting national headlines about 18 veteran suicides per day. However, one year later an 11-judge en banc panel of the Ninth Circuit reversed course and supported VA in May 2012.
Amicus briefs in support of VCS and VUFT’s petition in the Supreme Court were filed on October 10, 2012. VA, represented by the Department of Justice, will have an opportunity to file a brief responding to the petition by November 30, 2012. The Court will announce in late 2012 or early 2013 if it will hear the case.
Eric Shinseki is named as a defendant in the case because he is the current VA Secretary. The original suit was filed against R. James Nicholson, the former Secretary under former President George W. Bush.