Tuesday, September 18, 2012


My trusted veteran sources tell me that we may soon know if Veterans for Common Sense v. Eric K. Shinseki, the historic lawsuit filed by veterans advocates against the Department of Veterans Affairs (VA) way back in 2007, will be heard by the Supreme Court.

As I reported in Newsweek/The Daily Beast, a federal appeals court in May voted 10-1 to dismiss the landmark suit, which in unprecedented fashion demands that Secretary Shinseki and his VA fix the department's broken mental healthcare system. 

The court ruled that only Congress or the President has the authority to direct changes on how veterans are treated. That decision overturned a 2–1 ruling last year by the same court, which concluded that the department’s “unchecked incompetence has gone on long enough." 

The first panel was right: the unchecked incompetence at VA has indeed gone on long enough.

Veterans advocates were naturally disappointed by the appeals court's subsequent ruling, but they're not giving up. There is still hope that the Supreme Court will hear the case

Supporters of the lawsuit say they're still fighting for it because far too many families of veterans committed suicide after facing delays and denials in VA medical care.  

Here's the final paragraph from the petition for a writ of certiorari to the Supreme Court, filed last week by the original plaintiffs, Veterans for Common Sense (VCS) and Veterans United for Truth (VUFT):

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.

Paul Sullivan, a Gulf War vet and former executive director of VCS who now works at Bergmann & Moore, a law firm that exclusively represents veterans, said in an email this week that the lawsuit is "absolutely vital" for veterans.

"We all agree that no veteran should have to jump through hoops or wait years for the healthcare and disability benefits earned while defending our Constitution," he wrote.

Sullivan, who helped initiate the suit, said it could be several months before the Supreme Court decides whether to hear the case. 

Meantime, Sullivan praised his former organization VCS, VUFT, the law firm of Morrison / Foerster and the non-profit Disability Rights Advocates for working tirelessly on this case over the past five years on behalf of America's veterans.
Circuit Judge Mary Schroeder, the sole dissenter in the appeals court decision to dismiss the lawsuit, wrote that the dismissal "leaves millions of veterans without any available redress for claims..."

Which begs the question: How could ten other judges not see that? And why were the merits of the lawsuit recognized the first time around 2 to 1 only to lose with a larger panel? 

I'm no conspiracy theorist, but this one doesn't pass the smell test.

No one can predict how the Supreme Court will rule even if it does choose to hear the case, but veterans advocates are hoping the majority of the nine justices on our highest court heed Schroeder's words.

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