VCS in the News: Ninth Circuit on Veterans Issues - Can't We All Just Get Along?
Written by Kate Moser
Thursday, 13 August 2009 09:00
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August 12, 2009 - The Ninth Circuit U.S. Court of Appeals on Wednesday urged the U.S. Department of Veterans Affairs and two veterans groups to take a week or longer to see whether they can find common ground in an effort to improve medical care and the claims process for veterans.

"Go get a sandwich together," Chief Judge Alex Kozinski told the attorneys in a hearing. "Pursue the possibility of working something out." He recommended the court's mediation service, saying that a settlement would be "a tribute to our compassion" and care for veterans.

Surely the lawyers could sit down at the table, he said, "even if it's only [over] a bottle of water."

Charles Scarborough, appellate attorney with the U.S. Department of Justice, didn't sound confident about a settlement.

"I'm not optimistic that this is something that can be settled in a non-judicial manner," he told the judges.

Veterans for Common Sense and Veterans United for Truth sued in July 2007, seeking declaratory and injunctive relief to demand reform of the agency.

Gordon Erspamer of Morrison & Foerster, representing the veterans groups with co-counsel Disability Rights Advocates, referred Wednesday to the U.S. District Court's finding of "unreasonable delay" in medical care for veterans under the Administrative Procedure Act and argued that the court was wrong not to order the Department of Veterans of Affairs to provide timely care.

He cited the 85,000 veterans on waiting lists for mental health care, and the average of 4.4 years it takes a veteran to adjudicate a claim through the agency.

Scarborough said the Department of Veterans Affairs had committed more resources and started pilot programs to shorten delays. He said it takes time for new funds and hires to catch up with the need for services. He argued there weren't unreasonable delays in the system.

Kozinski said he was skeptical about the court's authority to take over the VA and asked why the problem of timely care for veterans isn't a political question.

Erspamer argued that Congress has enacted laws to address the problem, but that nothing has changed.

"What we're dealing with is whether what is happening now is in compliance with the law," Judge Stephen Reinhardt said. "If the VA is not complying with the law, I don't know what the great difficulty is in a court saying you must comply with the law."

 

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