Lawsuit Update and Statement

 The following statement was prepared in cooperation with our co-plaintiffs and attorneys in this matter. A special thanks to the staff of Morrison and Foerster LLP for all their tireless  efforts and hard work on behalf of veterans. 




WHAT:            Ninth Circuit Court of Appeals Decision in Favor of United States Department of Veterans Affairs in VCS, et al. v. Shinseki, et al.


An en banc panel of the Ninth Circuit Court of Appeals has issued its decision in the landmark case brought on behalf of veterans suffering from Post Traumatic Stress Disorder (PTSD).  At issue on appeal was whether the United States District Court erred when it denied veterans’ request for declaratory and injunctive relief to remedy unconscionable delays in VA’s provision of mental health care to veterans and VA’s adjudication of disability compensation claims filed by wounded veterans.  The Ninth Circuit ruled in its decision today that the District Court did not err.


Originally filed in July 2007, the case went to trial in April 2008 before Senior Federal District Court Judge Samuel Conti.  Despite finding that “the VA may not be meeting all of the needs of the nation’s veterans,” Judge Conti concluded that the power to remedy the crisis facing veterans lies with the other branches of government, including Congress and the Secretary of the Department of Veterans Affairs.  The Ninth Circuit agreed.


In its decision, the Ninth Circuit held that a federal statute closes the courthouse door to constitutional claims by veterans.  The full text of the decision can be found at


Sandy Cook, the Vice-Chair for Plaintiff Veterans United for Truth (VUFT), remarked:  “We are truly disturbed and ashamed to live in a society where the Courts have found corporations to enjoy more constitutional rights and protections than do our veterans, whom after all, are real people.  The message that this decision sends to the VA is that it can continue its


unconstitutional practices unchecked by the power of the Courts.  It would not be an exaggeration to call it a carte blanche approval for the VA to continue to mishandle, mistreat, and stiff our veterans.”  Bob Handy, the President of VUFT, added:  “I should never underestimate the ability of our Courts to weave some rationale that leaves veterans out in the cold or on the street, homeless and destitute, without any recourse.  It is no wonder that the suicide rate is so high.”


Paul Sullivan, former Executive Director of Plaintiff Veterans for Common Sense, commented:  “I’m afraid to have to say it, but if military recruits ever became aware of what they were getting into, they would never enlist.  Roads out of the military all lead to a land of broken promises and in too many cases, abject misery.  We will see this case to the end.  We owe it to every veteran who has died in the service of our country or who now suffers from the signature diseases of the Iraq and Afghanistan wars, post-traumatic stress disorder, and traumatic brain injury.  And all veterans must contact their representatives and demand the repeal of Section 511(a).”

His successor as Executive Director, Patrick Bellon, said “I was always taught that the Constitution trumps statutes and that the Courts were the last bastions to preserve our liberties; today, that promise has proved hollow, and all I hear is the continuing echoes of men and woman in distress.  We should all feel their pain.  This day will be remembers as the day the country turned its back on its veterans.”


This landmark case was brought on behalf of all veterans who are in desperate need of and have a right to VA medical treatment and disability compensation for war injuries.  The unique nature of the combat tactics in the Iraq and Afghanistan wars has generated an unprecedented number of veterans suffering from PTSD and other invisible wounds of war.  This well-documented PTSD epidemic, coupled with VA’s failure to provide veterans with timely access to healthcare, has led to a troubling rate of suicides among veterans in the VA’s care that the VA tried to conceal.  At a time when the VA was publicly reporting only 790 veteran suicide attempts in all of 2007, this lawsuit revealed for the first time an internal email from VA’s head of mental health that quietly cautioned, “Shh!…Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month…Is this something we should (carefully) address…before someone stumbles on it?”  This lawsuit also brought into high relief the unconscionable 4.4 year average delay that plagues the VA’s adjudication system for disability compensation claims.


Although the Ninth Circuit ruled that veterans must petition Congress or the VA itself to remedy the VA’s failings, we are grateful to the en banc panel for considering our legal arguments on appeal.  Most of all, we are grateful to our nation’s veterans for their dedicated service to our country and for holding the VA accountable for its own motto, “To Care for Him Who Hath Borne the Battle, and His Widow and His Orphan.”

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