9TH CIR.–VCS v. PEAKE et al

For he who shall have borne the

battle, his widow and his orphan child.

Abraham Lincoln- from his Gettysburg Address

As to whether the Court has jurisdiction to

institute remedial actions to compel the VA to do their job:

 “I don’t know. It’s an interesting

question. I don’t believe so.”

VA Government Counsel

Veterans are on the cusp of either relief from systemic delays endemic at the VA or being precluded from ever entering the halls of justice to seek injunctive relief from denial of due process.

The oral tape of the hearing was not of high quality at the beginning so I was unable to ascertain the name of counsel for VCS. He was, however very eloquent and made his case succinctly in the last two minutes on rebuttal, such as it was. VCS has couched their argument in terms of there being no remedy for delay of mental health benefits and the concomitant delay in benefits sought for death or pension compensation. Counsel contends this is a predicament for which there simply are no procedures in place to deal with the delays. He ably argued that 38 CFR §20.900(c) is not a panacea for this widespread practice. This regulation, of course, is the only one the CAVC can use as an Article 1 Court for relief. As we know, this simply advances one Veteran’s claim at the expense of others who have waited even longer for justice-hardly an equitable solution.

Listening to the Judges, it might seem as though they seek to absolve themselves of standing in this action. Nothing could be further from the truth. The Ninth Circuit revels in this sort of case. One of the Judges put forth a hypothetical postulation to the VA counsel that drove the nail home. VA has always maintained that they should be left alone to their own devices. They seek anonymity in their own splendid isolation to operate their fiefdom with no outside oversight. VCS has rudely interrupted this practice by calling them on the carpet for a practice that has been going on as long as I have been filing claims. The fact remains that VA has made no attempt to cure the ills complained of in spite of its protestations otherwise.

The Judge mentioned above put forth a scenario of where a Vet might turn if he or she perceived discrimination based on sex or race-to wit: Would it be permissible for a Vet to turn to the Fed. Cir. for relief if they were a) an individual versus a group and b) the discrimination or failure to resolve the inequity was inherently absent from an Article One Court’s charter? The counsel for VA initially said “I don’t know. It’s an interesting question”. Several sentences later he said there needed to be a specific case to cite to, not a class action. He then opined that he didn’t believe the authority of the Fed. Circuit extended into that realm. He reversed course several sentences later and said an individual wouldn’t be precluded from seeking appellate review from the Fed. Cir. Huh?

The counsel for VCS tries and succeeds in my mind, to present this as a problem that VA is ill equipped to handle. They have no procedures in place to comprehend the extensive delays and their current defense is “Nehmer’s slowing us down”. VCS tries to divorce this from the strictures of 38 USC §511 to  §7292(c) and move it into the light of deprivation of due process.

The unvarnished truth is that VA acknowledges they have no clue as to what the delay is due to. Their whole argument is to deflect the thrust of the inquiry and ask for an individual example or examples. Lord, there are no dearth of those lying about. I’m no poster child for this, but I’ve been waiting for sixteen years. VCS’ counsel cited Cushman which had festered for 20 years (see discussion of Cushman in link below)


In the preface, VCS’ counsel made some strong statements that frame this case very well. The system’s broken and everyone is standing on the side of the road arguing about the correct course of action. Some advocate for extreme measures (VCS) and others (VA) would prefer to let the system right itself with time or, in the alternative, that the 9th Federal Circus has no right or standing to propose solutions to this.

Let’s look at this from an historical perspective. Courts have   (since the sixties) become more amenable to the plight of the individual or a class where due process issues arise. Look no further than the seminal remedies employed to integrate schools forcibly in the sixties or remedies for overcrowding in state prisons and jails. In each instance, the Courts interposed themselves in the middle of what could only have been considered turf belonging to the legislative branch. This judicial activism resulted in a sea change for Civil Rights in the first instance and a radical departure from how States ran their prisons in the latter. This is the ammunition VCS brings to the Court as evidence that that intervention is both needed and is apropos.

The government and VA would prefer to repair it themselves, yet they have shown no inclination to do so. Their silver tongued arguments that this will soon be remedied are becoming repetitious and redundant with no appreciable relief for Veterans on the horizon.

VCS ably made its argument that if the Court rules against them, they will effectively squelch more than Veterans’ due process rights. A ruling in favor of the government would effectively deprive anyone of relief when they are at the mercy of a closed system such as the Social Security and Veterans courts.

The judges put VA’s counsel off kilter when they inquired as to who a Veteran would turn to for due process relief if he were deprived of this avenue sought.  A Writ of Mandamus for injunctive relief from undue and interminable delay currently is the only remedy and that simply disenfranchises another Veteran. As the CAVC can only offer relief in a narrow vein, and this avenue is not accorded them in their charter, it would appear that Vets have no judicial venue to protect their interests absent one proffered by the  Ninth Circuit. VA dissembled and had no specific answer to that. When one of the Ninth’s nine cited to Bowen v. Mass. for the proposition that the Fed. Cir. does indeed have this statutory power, VA had no rebuttal argument in their back pocket to counter with. Nevertheless, they insist the Ninth Circuit most definitely doesn’t have it.


VA is on thin ice and has been for years. They have always been able to ask for one more chance like a junkie asking for one more fix before going to rehab. Their arguments have been extremely well received in the past and I’m sure they expected no less a reception before the Ninth Circuit’s en banc Court. They must have thought they would receive a more cultured group amenable to the Government’s point of view after the earlier bitchslap from the panel. It must come as a rude surprise, then, when the Justices proceed to ask embarrassing questions and query them on when (and how) they propose to correct this problem. The old answers don’t seem to work any more.

America has once again become enamored of its citizen soldiers and their contributions to our freedoms. There’s nothing like a Pearl Harbor or a 9/11 to galvanize the populace to our cause. This increased attention has had the unfortunate effect of shining a light on VA’s shortcomings. Vietnam cast a long shadow on our military that has taken forever to throw off.  People are proud of our military and its accomplishments again and they feel remunerations are in order, not excuses. This appreciation for all things military exposes Government’s professed support of the Veterans Administration and the actual facts. VA can no longer hide its mentally defective aunt in the upstairs bedroom and say she’s under the weather today or she’d be here in the parlor with us. The facts are starting to seep out like last week’s garbage under the kitchen sink. Febreeze and excuses won’t mask the problem anymore.

All in all, this will be the Chicken Little moment for Vets. Either the sky is falling as the VCS has unarguably pointed out-or it isn’t and its just a “perception” problem. When a Veteran has to wait 89 days to see a mental health expert and chooses to end his life while waiting, I submit the sky is falling. When 18 Veterans a day chose this option because they have lost their ability to “perceive a solution” then I, too, submit that it is time for the Court to intercede on their (and our) behalf and correct this injustice. The alternative is too egregious to be allowed to continue.

http://www.ca9.uscourts.gov/media/ Third case down on the docket.

About asknod

VA claims blogger
This entry was posted in Fed. Cir. & Supreme Ct. and tagged , , . Bookmark the permalink.

1 Response to 9TH CIR.–VCS v. PEAKE et al

  1. Randy Nesbitt says:

    In your article you mentioned waiting for 89 days to see a mental health expert. This is but one of the many delays that are brought forth each and every day. One has but to look at the numbers of veterans who are now deceased due to the effects of Agent Orange who were denied help due to the fact that the VA denied there was any correlation or causal effect. It was not until 2011 that the Vets were finally heard and assistance forthcoming. Once again it is a system borne of the, “too little too late” category. The practice continues each and every day be it in the court system or within the DRO offices. It appears that once the wounded and afflicted have a lesser voice due to dwindling numbers then it is OK to spend the resources to help the remaining few. How many of those trying to find the correct path have actually seen combat or even worn the uniform?

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