Back in May, I wrote about this seminal decision  VCS v. Shinseki wondering how long it would be before a) this was granted en banc reconsideration or b) it was appealed up to the Supremes. Yesterday the 9th Fed. Cir. spoke. They have decided on option A. This is good. It will create more back pressure to force our compromised federal agency to start doing what it should have been accomplishing all along.

It may come at the expense of other federal programs that have nothing to do with Vets, but we comprise 8% of America and are allotted a very small piece of the pie. A $27 billion a year budget may seem like a lot to you and me, but the government spends that in a day or two.  We are used like a broom throughout the world to clean up messes. Yet oddly when the time comes to repair or refurbish the broom, we are given excuses as to why that will take time. Lots of time. VA has lots of this time stuff. They measure time not with atomic clocks, but with trees. A tree can grow 30 feet in the time it takes to adjudicate a claim. I’ll take a picture of the six foot tall live Christmas Tree we planted after my son’s first Christmas in 1989. That was the year I first filed for my back. It’s in CUE status in D.C. right now. My son is twenty three and in law school. The Adjudication Officer (AO) who did my claim in 1989 and ultimately mailed me my denial was named Wallace. When I filed in 2007 again, his name was at the bottom as being the manager of the Seattle RO. He retired in 09.

The tone of the judges on this is refreshing even if they’re inherently liberal progressives. I admire them for hitting the nail on the head. Too often the Government types try to do the moon walk backwards off the stage and leave without concluding business. These fellows certainly can’t be convicted of this crime. Read this intro:

We are presented here with the question of what happens when the political branches fail to act in a manner that is consistent with the Constitution. The Constitution affirms that people have rights that are enforceable against the government. One such right  is to be free from unjustified governmental deprivation of property-including the health care and benefits that our laws guarantee veterans upon completion of their service.Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their Constitutional rights. Wars, including wars of choice, have many costs. Affording our vets their constitutional rights is a primary one. 644 F.3d 845 (9th Cir. 2011)

This decision tells of things similar. It tells us that VA is broken and needs to be rebuilt like an automobile engine. Procedures need to be revamped. Whole processes of judicial procedure need to be overhauled. In fact, the May decision concluded that it may be unsalvageable and perhaps should be subbed out to the civilian judiciary to sort out the mess.

You can almost see the smoke coming out of Eric’s ears on this one. Veterans for Common Sense isn’t like a VSO you can make heel like a dog. Their ranks contain all number of law dogs eager to get their imprimatur on the Appeal pro bono. VASEC is facing the possibility that he is going to be emasculated. If the en banc decision goes against him yet again, I foresee him resigning rather than dying on that hill. A spirited defense will go to the Supremes. That is cast in stone regardless of which way the tree falls. One other thing is paramount here, too. Getting certiorari at the Supreme Court is going to be easier for Eric and much harder for VCS. That’s just the way the cookie crumbles. The government, even the much vaunted Judiciary, has a vested interest in America’s pocketbook. They won’t go down in history being the one that broke the bank.

The 9th Circuit, as we all know, sits on the Left Coast. They are not pestered by things such as precedence. Their decisions have a horrible success rate but there is power in numbers. If you throw 10 darts at the board simultaneously, some will hit and stick but  will eventually be dislodged. The damage that ensues has to be swept up, too. That’s what lawyers are for. Lots of them on the left coast, too.

VCS will prevail in this en banc venture- that much is certain. Oral hearings are slated for the week of December 12th.  A 9th Circuit en banc Court overturning a 9th Cir. panel hasn’t occurred for as long as I can remember. How the Supremes will look at it is the important thing. That we won’t see for several more trees.