Veterans for Common Sense v. Eric K. Shinseki , 644 F.3d 845 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VETERANS FOR COMMON SENSE, a 
District of Columbia nonprofit
organization; VETERANS UNITED FOR
TRUTH, INC., a California nonprofit
organization, representing their
members and a class of all
veterans similarly situated,
Plaintiffs-Appellants,
v.
ERIC K. SHINSEKI, Secretary of
Veterans Affairs; UNITED STATES No. 08-16728
DEPARTMENT OF VETERANS AFFAIRS;
JAMES P. TERRY, Chairman, Board  D.C. No.
3:07-cv-03758-SC
of Veterans’ Appeals; MICHAEL
WALCOFF, Acting Under Secretary, OPINION
Veterans Benefits Administration;
BRADLEY G. MAYES, Director,
Compensation and Pension
Service; ROBERT A. PETZEL, M.D.,
Under Secretary, Veterans Health
Administration; PRITZ K. NAVARA,
Veterans Service Center Manager,
Oakland Regional Office,
Department of Veterans Affairs;
UNITED STATES OF AMERICA,
Defendants-Appellees,

Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
6293
6294 VETERANS FOR COMMON SENSE v. SHINSEKI
Argued August 12, 2009
San Francisco, California
Submitted September 14, 2009
Filed May 10, 2011
Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Chief Judge Kozinski
6298 VETERANS FOR COMMON SENSE v. SHINSEKI
COUNSEL
Gordon P. Erspamer (argued), Heather A. Moser, Ryan G.
Hassanein, M. Natalie Naugle, and Stacey M. Sprenkel, Mor-
rison & Foerster LLP, San Francisco, California; and Sidney
M. Wolinsky, Ronald Elsberry, Katrina Kasey Corbit, and
Jennifer Bezoza, Disability Rights Advocates, Berkeley, Cali-
fornia, for the plaintiffs-appelants.
Michael F. Hertz, Acting Assistant Attorney General; Joseph
P. Russoniello, United States Attorney; and William Kanter
and Charles W. Scarborough (argued), Appellate Staff, Civil
Division, Department of Justice, for the defendants-appellees.
OPINION
REINHARDT, Circuit Judge:
On an average day, eighteen veterans of our nation’s armed
forces take their own lives. Of those, roughly one quarter are
enrolled with the Department of Veterans Affairs (“VA”)
health care system. Among all veterans enrolled in the VA
system, an additional 1,000 attempt suicide each month.
Although the VA is obligated to provide veterans mental
health services, many veterans with severe depression or post-
traumatic stress disorder (“PTSD”) are forced to wait weeks
for mental health referrals and are given no opportunity to
request or demonstrate their need for expedited care. For
those who commit suicide in the interim, care does not come
soon enough. Like the cavalry of Alfred, Lord Tennyson’s
“Charge of the Light Brigade,” these veterans may neither
“make reply” nor “reason why” to the “blunder” of those
responsible for their safety.
Veterans who return home from war suffering from psy-
chological maladies are entitled by law to disability benefits
VETERANS FOR COMMON SENSE v. SHINSEKI 6299
to sustain themselves and their families as they regain their
health. Yet it takes an average of more than four years for a
veteran to fully adjudicate a claim for benefits. During that
time many claims are mooted by deaths. The delays have
worsened in recent years, as the influx of injured troops
returning from deployment in Iraq and Afghanistan has placed
an unprecedented strain on the VA, and has overwhelmed the
system that it employs to provide medical care to veterans and
to process their disability benefits claims. For veterans and
their families, such delays cause unnecessary grief and priva-
tion. And for some veterans, most notably those suffering
from combat-derived mental illnesses such as PTSD, these
delays may make the difference between life and death.
In this context, two non-profit organizations, Veterans for
Common Sense and Veterans United for Truth (collectively
“Veterans”1), seek injunctive and declaratory relief to remedy
the delays in (1) the provision of mental health care and (2)
the adjudication of service-connected death and disability
compensation claims by the VA. Among other issues, Veter-
ans ask us to decide whether these delays violate veterans’
due process rights to receive the care and benefits they are
guaranteed by statute for harms and injuries sustained while
serving our country. We conclude that they do.
We do not reach this answer lightly. We would have pre-
ferred Congress or the President to have remedied the VA’s
egregious problems without our intervention when evidence
of the Department’s harmful shortcomings and its failure to
properly address the needs of our veterans first came to light
years ago. Had Congress taken the requisite action and ren-
dered this case unnecessary even while it was pending before
us, we would have been happy to terminate the proceedings
and enter an order of dismissal. Alternatively, had the VA
agreed with Veterans following oral argument to consider a
1
We use the term Veterans to refer to the two plaintiff organizations as
well as to their members throughout.
6300 VETERANS FOR COMMON SENSE v. SHINSEKI
practical resolution of the complex problems, the end result
surely would have been more satisfactory for all involved. We
joined in our dissenting colleague’s suggestion that we defer
submission of this case in order to permit the parties to
explore mediation, and we regret that effort proved of no
avail. We willingly acknowledge that, in theory, the political
branches of our government are better positioned than are the
courts to design the procedures necessary to save veterans’
lives and to fulfill our country’s obligation to care for those
who have protected us. But that is only so if those govern-
mental institutions are willing to do their job.
We are presented here with the question of what happens
when the political branches fail to act in a manner that is con-
sistent with the Constitution. The Constitution affirms that the
People have rights that are enforceable against the govern-
ment. One such right is to be free from unjustified govern-
mental 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 worth-
less. When the government harms its veterans by the depriva-
tions 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 vulnera-
ble group, that is being denied its rights by an unresponsive
government, has nowhere else to turn. No more critical exam-
ple exists than when the government fails to afford its injured
or wounded veterans their constitutional rights. Wars, includ-
ing wars of choice, have many costs. Affording our veterans
their constitutional rights is a primary one.
There comes a time when the political branches have so
completely and chronically failed to respect the People’s con-
stitutional rights that the courts must be willing to enforce
them. We have reached that unfortunate point with respect to
veterans who are suffering from the hidden, or not hidden,
wounds of war. The VA’s unchecked incompetence has gone
VETERANS FOR COMMON SENSE v. SHINSEKI 6301
on long enough; no more veterans should be compelled to
agonize or perish while the government fails to perform its
obligations. Having chosen to honor and provide for our vet-
erans by guaranteeing them the mental health care and other
critical benefits to which they are entitled, the government
may not deprive them of that support through unchallengeable
and interminable delays. Because the VA continues to deny
veterans what they have been promised without affording
them the process due to them under the Constitution, our duty
is to compel the agency to provide the procedural safeguards
that will ensure their rights. When the stakes are so high for
so many, we must, with whatever reluctance, fulfill our obli-
gation to take this extraordinary step.2
We affirm the district court’s rulings with respect to Veter-
ans’s various claims for specific forms of relief under the
Administrative Procedure Act, including their claims for
system-wide implementation of various VA mental health
care initiatives and their claims for the alteration of disability
compensation adjudication procedures in VA regional offices.
We conclude, as did the district court, that the relevant provi-
sions of the Administrative Procedure Act prevent us from
granting Veterans the statutory relief that they seek. We
reverse, however, the district court’s rulings on Veterans’s
constitutional claims. We hold that the VA’s failure to pro-
vide adequate procedures for veterans facing prejudicial
delays in the delivery of mental health care violates the Due
Process Clause of the Fifth Amendment, and that the district
court erred when it found otherwise. We further hold that the
district court erred in concluding that it lacked jurisdiction to
review Veterans’s due process challenge to delays and proce-
dural deficiencies in the compensation claims adjudication
2
We emphasize that we are presented with grave questions of life and
death, and fundamental structural problems with the government’s fulfill-
ment of its duty to veterans. This is a serious matter, which deserves to
be taken seriously, rather than as an opportunity to employ military meta-
phors in a failed effort to entertain the reader.
6302 VETERANS FOR COMMON SENSE v. SHINSEKI
system, and that it erroneously denied Veterans the relief to
which they are entitled under the Due Process Clause. We
therefore affirm the district court in part, reverse in part, and
remand for further proceedings.
BACKGROUND
There are approximately 25 million veterans in the United
States. As of May 2007, roughly one-quarter of them were
enrolled for health care with the VA,3 the mission of which is
“to fulfill President Lincoln’s promise ‘To care for him, who
shall have borne the battle and for his widow and for his
orphan’ by serving and honoring the men and women who are
America’s veterans.”4 The VA has three branches: the Veter-
ans Health Administration (“VHA”), the Veterans Benefits
Administration (“VBA”), and the National Cemetery Admin-
istration (“NCA”). This case involves statutory and constitu-
tional challenges to the actions of two of those branches, the
VHA and the VBA.
I. Veterans Health Administration
Under Chapter 17 of Title 38 of the United States Code,
veterans have a statutory entitlement to hospital care and
other medical services. See 38 U.S.C. § 1710. This care is
provided by the Veterans Health Administration. The VHA is
required by law to provide free medical care to all veterans
who served in any conflict after November 1, 1998, for up to
five years from the date of separation from military service
3
The district court found these facts. We take judicial notice of the more
current official figures provided by the VA: 23 million veterans, of whom
one-third (8 million) are now enrolled for health care with the Veterans
Health Administration, and of whom 3 million receive disability benefits.
See VA Benefits & Health Care Utilization (July 30, 2010), available at
http://www1.va.gov/VETDATA/Pocket-Card/4X6_summer10_sharepoint
.pdf.
4
United States Department of Veterans Affairs, Mission Statement,
available at http://www4.va.gov/about_va/ mission.asp.
VETERANS FOR COMMON SENSE v. SHINSEKI 6303
for any medical condition, even if the condition is not attribut-
able to military service. 38 U.S.C. §§ 1710(e)(3)(C)(i);
1710(e)(1)(D). Medical services that the VHA is required to
provide to veterans include “medical examination, treatment,
and rehabilitative services.” 38 U.S.C. § 1701(6).
The VHA is also required, by statute, to provide readjust-
ment counseling and related mental health care services to eli-
gible veterans. See 38 U.S.C. § 1712A. The Secretary of
Veterans Affairs is required to “furnish counseling to the vet-
eran to assist the veteran in readjusting to civilian life. Such
counseling may include a general mental and psychological
assessment of the veteran to ascertain whether such veteran
has mental or psychological problems associated with read-
justment to civilian life.” 38 U.S.C. § 1712A(a)(1)(A). If a
veteran requests a “general mental health assessment” the VA
must provide such an assessment “as soon as practical after
receiving the request, but not later than 30 days after receiv-
ing the request.” 38 U.S.C. § 1712A(a)(3). If the physician or
psychologist who conducts the mental health evaluation deter-
mines that the veteran requires mental health services “to
facilitate the successful readjustment of the veteran to civilian
life” the veteran shall be “furnished such services.” 38 U.S.C.
§ 1712A(b)(1).
The VHA provides healthcare services to veterans via 21
regional Veterans Integrated Service Networks, which admin-
ister 153 VA hospitals (or medical centers), approximately
800 community-based outpatient clinics, and 200 Readjust-
ment Centers (or “Vet Centers”) throughout the United States.
The Secretary is required by statute to ensure that this health
care system is “managed in a manner to ensure that the provi-
sion of care to enrollees is timely and acceptable in quality.”
38 U.S.C. § 1705(b)(3).
Most veterans enrolled with the VA receive medical care at
the VHA’s community-based outpatient clinics. These clinics
do not provide mental health care services, even though an
6304 VETERANS FOR COMMON SENSE v. SHINSEKI
unprecedented number of newly-discharged veterans have
been diagnosed as suffering from mental disorders, in particu-
lar PTSD, as a result of military service in Iraq or Afghani-
stan. Approximately one out of every three soldiers returning
from Iraq was seen in a VHA facility for mental health related
treatment within a year of his return to the United States. The
total number of patients is high; since October 2001, more
than 1.6 million military personnel have served in Iraq or
Afghanistan, and as of the end of 2007, over 800,000 veterans
of the wars in Iraq and Afghanistan were eligible for VA
health care.
PTSD is a leading mental health disorder diagnosis for
those veterans.5 According to Dr. Arthur Blank, a psychiatric
expert who testified before the district court, this disorder is
a “psychological condition that occurs when people are
exposed to extreme, life-threatening circumstances, or [when
they are in] immediate contact with death and/or gruesome-
ness, such as [what] occurs in combat, severe vehicular acci-
dents or natural disasters. It produces a complex of
psychological symptoms which may endure over time.” Those
symptoms include anxiety, persistent nightmares, depression,
uncontrollable anger, and difficulties coping with work, fam-
ily, and social relationships. From 2002 to 2003 there was a
232 percent increase in PTSD diagnoses among veterans born
after 1972. A 2008 study by the RAND Institute shows that
18.5 percent of U.S. service members who have returned from
Iraq and Afghanistan currently have PTSD, and that 300,000
service members now deployed to Iraq and Afghanistan “cur-
rently suffer PTSD or major depression.” Delays in the treat-
ment of PTSD can lead to alcoholism, drug addiction,
homelessness, anti-social behavior, or suicide.
5
As the Commander-in-Chief recently acknowledged, PTSD is one of
the two “signature wounds of today’s wars.” President Barack Obama,
Remarks by the President in Address to the Nation on the End of Combat
Operations in Iraq (Aug. 31, 2010).
VETERANS FOR COMMON SENSE v. SHINSEKI 6305
Veterans in general face a heightened risk of suicide.
Studies show that suicide rates among veterans are much
higher than among the general population. One such study
considered by the district court, the “Katz Suicide Study” of
February 2006, found that suicide rates among veterans were
approximately 3.2 times higher than among the general popu-
lation. The author of that study, a senior physician and admin-
istrator at the VHA, also estimated that “[t]here are about 18
suicides per day among American’s 25 million veterans” and
that there are four to five suicides per day among veterans
currently receiving treatment from the VA. Dr. Katz subse-
quently noted that the VHA’s “suicide prevention coordina-
tors” had identified approximately 1,000 suicide attempts per
month among the veterans treated in VHA medical facilities.
In July 2004, the VA developed and adopted a five-year
Mental Health Strategic Plan to improve the provision of
mental health care services. One of its core objectives was to
“[r]educe suicides among veterans.” In May 2007, however,
the VA Office of Inspector General (“OIG”) issued a report
concluding that many components of the Mental Health Stra-
tegic Plan, including those relating to suicide reduction, had
not been implemented. Moreover, the district court record
shows that even in areas in which the VA has attempted to
follow the Mental Health Strategic Plan, the measures intro-
duced have fallen short of the Plan’s express goals. For exam-
ple, the Plan called for thorough mental health screening for
“[e]very returning service man/woman . . . as part of the post-
deployment and separation medical examination.” Mental
health screening is now a component of the primary health
care examination when veterans first enroll in the VA, but
that screening is not rigorous and does not always evaluate
veterans’ risk of suicide. Although veterans are screened for
PTSD, depression, traumatic brain injury, military sexual
trauma, and problem drinking, their risk of suicide is not auto-
matically assessed. All veterans who specifically present6 with
6
The intransitive verb “present” is used by healthcare professionals to
mean “to come before a physician (with a particular symptom, medical
history, etc.)” Webster’s New World College Dictionary (2010).
6306 VETERANS FOR COMMON SENSE v. SHINSEKI
mental health or addiction disorders are screened for suicide
risk, but just two questions are asked:
(1) “During the past two weeks, have you felt down,
depressed, or hopeless?”
(2) “During the past two weeks, have you had any
thoughts that life was not worth living or any
thoughts of harming yourself in any way?”
Veterans who answer “yes” to the first question, but “no” to
the second question are not given any further suicide risk
screening, unless they are being admitted to an inpatient psy-
chiatric unit.7
The May 2007 OIG report concluded that there was a wide-
spread absence of effective suicide prevention measures at
VHA facilities. The report found that 61.8 percent of VHA
facilities had not introduced a suicide prevention strategy to
target veterans returning from Iraq and Afghanistan and that
42.7 percent of such facilities had not introduced a program
to educate first-contact, non-medical personnel about how to
respond to crisis situations involving veterans at risk for sui-
cide. This report also found that 70 percent of VHA facilities
had not introduced a system to track veterans who presented
risk factors for suicide and 16.4 percent of VHA facilities had
not implemented a medical referral system for veterans with
risk factors. By 2009, each of the 153 VHA Medical Centers
had a suicide prevention officer, charged with overseeing the
clinical care of at-risk patients.8 There were, however, no sui-
cide prevention officers at any of the approximately 800
7
Although the record does not state explicitly that those who answer
“no” to both questions also receive no further treatment, even if they expe-
rienced frequent suicidal impulses previously, we note that this is also a
logical inference.
8
The district court noted that these officers receive just two and one half
days of special training for their role.
VETERANS FOR COMMON SENSE v. SHINSEKI 6307
community-based outpatient clinics, where most veterans
receive their medical care.
The effect of VHA’s failure to implement a systematic pro-
gram designed to reduce veterans’ risk of suicide has been
magnified by its failure to adopt measures to ensure that vet-
erans with mental health disorders are swiftly identified and
offered treatment. As the district court found, the May 2007
OIG report identified significant delays that prevented veter-
ans from obtaining timely physician referrals for the treatment
of depression and PTSD. For example, the report found that
where a primary care provider refers a veteran suffering from
depression with symptoms of moderate severity, only 40 per-
cent of VA facilities reported a same-day evaluation, whereas
24.5 percent of VA facilities reported a waiting period of two
to four weeks, and 4.5 percent of facilities reported a waiting
period of four to eight weeks. Similarly, only 33.6 percent of
VA facilities reported same-day evaluation for individuals
referred with symptoms of PTSD, while 26 percent reported
wait times of two to four weeks, and 5.5 percent reported wait
times of four to eight weeks. These extensive waiting times
can have devastating results for individuals with serious men-
tal illnesses.
The VA has acknowledged the crucial importance of timely
clinical treatment for individuals with mental illnesses, and
the district court record is replete with examples of state-
ments, both written and oral, by senior VHA physicians and
administrators underscoring the importance of timely medical
care. One such example is a memorandum written by William
Feeley, who, until April 2009, was the Deputy Under Secre-
tary for Health Operations and Management at the VHA. In
June 2007, he issued a memorandum instructing the directors
of all 21 Veterans Integrated Service Networks to begin
implementing the specific initiatives set forth in the 2004
Mental Health Strategic Plan, including those guaranteeing
timely mental health treatment. The memo instructed that a
veteran who presents with mental health issues for the first
6308 VETERANS FOR COMMON SENSE v. SHINSEKI
time at a medical center or community-based outpatient clinic
should be evaluated within 24 hours. It also provided that a
veteran who seeks an appointment for mental health issues
should be given a follow-up appointment within 14 days. Yet,
VA administrators testified before the district court during the
2009 trial that they had no reports showing that either initia-
tive mentioned in the Feeley memo had been implemented
system-wide. Indeed, the district court found that as of April
2008, approximately 85,450 veterans remained on VHA wait-
ing lists for mental health services.9
Veterans suffering from mental illnesses who are told that
they must wait for extended periods of time before receiving
treatment have little recourse. A veteran has neither the right
nor the opportunity to appeal an administrative decision to
place him on a wait list, if that decision is made by a clerical
appointment scheduler such as a medical center receptionist.
By contrast, a veteran may appeal a doctor or nurse’s clinical
decision that he must wait for a certain period of time before
receiving mental health care. To do so, he must complain to
a so-called “Patient Advocate,” an employee of the VHA
Medical Center at which the veteran was treated who is a col-
league of the doctor or nurse who placed the veteran on the
wait list. The Patient Advocate logs the veteran’s complaint
in a database and refers the complaint to the Medical Center’s
Chief of Staff, who must decide how to respond to the com-
plaint within seven days. If the veteran disagrees with the
Chief of Staff’s decision, he may further appeal to the Direc-
tor of the Veterans Integrated Service Network, who makes a
final decision on the veteran’s complaint. If the veteran dis-
agrees with the Director’s decision, he may ask the Director
9
These numbers may, however, significantly under-represent the num-
ber of veterans actually awaiting mental health care. During the trial
before the district court, the chief medical officer of the Veterans Inte-
grated Service Network in the Great Lakes Region testified that, in his
region, a veteran was only placed on the wait list for a mental health
appointment after he had already waited for 30 days to see a mental health
professional.
VETERANS FOR COMMON SENSE v. SHINSEKI 6309
to request an external review. The veteran himself may not
request such a review; only the Director may do so. More-
over, even if the Director does request an external review, the
veteran has no right to know the results of that review. The
veteran’s only way to independently learn the outcome of an
external review is to file request under the Freedom of Infor-
mation Act.
II. Veterans Benefits Administration
The Veterans Benefit Administration is the branch of the
VA responsible for veterans’ benefits programs, including
pensions and “Service-Connected Death and Disability Com-
pensation” benefits. Veterans with service-connected disabili-
ties — i.e., disabilities that are the result of a disease or injury
incurred through, or aggravated during, active military service
— are entitled to monetary benefits as compensation. See 38
U.S.C. § 1110; 38 C.F.R. § 3.303(d). Approximately 3.4 mil-
lion veterans currently receive monetary benefits from the
VBA. The district court found that many recipients of service-
connected death or disability compensation benefits are
totally or primarily dependent upon those benefits for finan-
cial support. The application procedures for such benefits are
complex, and the district court found that, in light of statistics
showing the limited formal education of the majority of recent
veterans, many of them may have difficulty applying for the
benefits to which they are entitled without substantial third-
party assistance.
A
The labyrinthine process of applying for benefits from the
VBA begins at one of the 57 VA Regional Offices located
throughout the United States. To apply for service-connected
disability compensation benefits, a veteran must complete a
23-page application and submit it to the VA Regional Office
in his area. In support of his application, the veteran must
present evidence of his disability, service in the military that
6310 VETERANS FOR COMMON SENSE v. SHINSEKI
would entitle him to benefits, and a nexus between the dis-
ability and the military service.10
The Veterans Claims Assistance Act, 38 U.S.C. § 5103,
states that the VBA has a “duty to assist” veterans, requiring
it to aid them in developing all evidence in support of their
disability claims. Under the Act, upon receipt of a veteran’s
benefits claim application, a VBA Veterans Service Represen-
tative must contact the veteran and notify him of any further
evidence that the VBA requires in order to adjudicate the
claim. Id. The Veterans Service Representative must send the
veteran a “duty to notify letter” detailing what information the
veteran is expected to provide and what evidence the VBA
will seek on his behalf under the Veterans Claims Assistance
Act. In accordance with its “duty to assist” under the Act, the
VBA must seek all government records that may pertain to
the claim, including, inter alia, service personnel and medical
records, VA medical records, and social security records. The
“duty to assist” also requires the VBA to undertake “reason-
able efforts” to acquire non-federal records, most notably pri-
10
A veteran whose claim includes PTSD must additionally provide
proof of a “stressor” event that occurred during his military service. See
38 C.F.R. § 3.304(f)(1) (“if the evidence establishes that the veteran
engaged in combat . . . and the claimed stressor is related to that combat,
in the absence of clear and convincing evidence to the contrary . . . the vet-
eran’s lay testimony alone may establish the occurrence of the claimed in-
service stressor.”) According to Ronald Aument, formerly Deputy Under
Secretary for Benefits, this additional requirement renders PTSD-based
disability benefit claims among the most difficult claims that the VA adju-
dicates. Specifically, the district court found that veterans often make mis-
takes completing their application forms and submitting evidence in
support of their disability claims, and veterans suffering from PTSD had
a particularly hard time furnishing the information properly. We note,
however, that the VA recently amended its regulations “by liberalizing in
some cases the evidentiary standard for establishing the required in-
service stressor” to make it simpler for veterans to file claims for PTSD
based on stressors “related to the veteran’s fear of hostile military or ter-
rorist activity.” Stressor Determinations for Posttraumatic Stress Disorder,
75 Fed. Reg. 39,843, 39,843 (July 13, 2010); see 38 C.F.R. § 3.304(f)(3)
(2010).
VETERANS FOR COMMON SENSE v. SHINSEKI 6311
vate medical records identified by the veteran, if the veteran
furnishes the VBA with a signed release form. Veterans have
60 days to respond to the “duty to notify letter” and to furnish
the VBA with any applicable releases.
Section 5103A of the Veterans Claims Assistance Act
states that the VBA’s “duty to assist” also includes “providing
a medical examination or obtaining a medical opinion when
such an examination or opinion is necessary to make a deci-
sion on the claim.” 38 U.S.C. § 5103A. This medical exami-
nation is intended to confirm that a disability exists and to
assess the medical implications of that disability in order to
assist the claim adjudicator in determining the percentage the
veteran will be considered disabled pursuant to the VBA’s
rating schedule. The VBA arranges and pays for Compensa-
tion and Pension Examinations, and the current wait time for
such examinations is approximately 30-35 days. Individuals
who have been treated for a recognized disability, such as
PTSD, at a VHA medical facility may nonetheless be required
to undergo a Compensation and Pension Examination. More-
over, a veteran who has been previously diagnosed by a phy-
sician at a VHA medical center as having PTSD, may
nonetheless be diagnosed as not having PTSD during a VBA
Compensation and Pension Examination.
Once all of the evidence in support of a veteran’s service-
connected disability compensation benefits claim has been
gathered, a Rating Veterans Service Representative (known as
a “rating specialist”) decides whether the veteran’s disability
is service connected, and, if it is, assigns a rating to his claim.
Approximately 88 percent of all ratings claims are at least
partially granted. The rating given operates on a sliding scale
from zero percent disabled to 100 percent disabled, with
increases at ten percent increments. Compensation currently
ranges from $123 per month for a ten percent rating to $2,673
per month for a 100 percent rating. 38 U.S.C. § 1114.
6312 VETERANS FOR COMMON SENSE v. SHINSEKI
During the pendency of a veteran’s claim to his local VBA
Regional Office, he is statutorily barred from paying a lawyer
to represent him. See 38 U.S.C. § 5904. He may, however, be
represented by a pro bono attorney or a representative from a
Veterans Service Organization — a non-profit organization
that is dedicated to working on behalf of veterans.11
If a veteran disagrees with the rating accorded him by the
ratings specialist in his local Regional Office he may appeal.
The multi-phase appeals process is, however, extremely diffi-
cult to navigate, especially for those suffering from mental
disabilities such as PTSD, and embarking upon an appeal may
delay a veteran’s receipt of benefits for many years.
A veteran may initiate his appeal of a rating specialist’s rat-
ing decision by filing an informal Notice of Disagreement
with his local Regional Office, or by filing a direct appeal to
the Board of Veterans’ Appeals with that Regional Office. A
Notice of Disagreement may be filed within one year of the
issuance of the VBA Regional Office’s ratings decision. The
veteran may appeal any part of the rating decision, including
the denial of a ground of disability, the percentage of the dis-
ability assigned to the veteran, or the effective date of the dis-
ability. During the appeals process, the veteran’s record
remains open, and the veteran may submit additional evidence
at any time.
When a Regional Office receives a Notice of Disagreement
from a veteran it sends the veteran an election letter asking
the veteran to choose between two non-exclusive appeals pro-
cesses: (1) de novo review of his claim by a Decision Review
11
VSOs are not affiliated with the VA. The district court found that in
some cases, the VA provides VSOs with office space in its VBA Regional
Offices, computer systems, and access to VA databases. The court also
found, however, that the VA does not provide training to VSOs regarding
how to assist veterans, and that all of the VSOs combined cannot meet the
needs of all the veterans seeking benefits.
VETERANS FOR COMMON SENSE v. SHINSEKI 6313
Officer (a senior ratings specialist) who is empowered to
reverse the initial rating decision if he believes that it is not
warranted; or (2) issuance of a Statement of the Case by the
Regional Office, providing a more detailed rationale for the
underlying ratings decision, to be used in a formal appeal to
the Board of Veterans’ Appeals. See 38 U.S.C. § 7105. A vet-
eran is entitled to retain paid counsel at this stage of the pro-
ceedings. See 38 U.S.C. § 5904.
If the veteran elects de novo review by a Decision Review
Officer, and that officer resolves some, but not all of the
appeal, or if the officer fails to resolve the appeal, a Statement
of the Case will be prepared and the veteran may pursue a for-
mal appeal to the Board of Veterans’ Appeals. If the veteran
decides to file a formal appeal with the Board, the veteran
must file a VA Form 9 with his local Regional Office within
60 days of receiving the Regional Office’s Statement of the
Case, or within a year of receiving the Regional Office’s rat-
ing decision, whichever is longer. See 38 U.S.C. § 7105(d)(3).
The Regional Office must then certify the veteran’s appeal to
the Board of Veterans’ Appeals. 38 C.F.R. § 19.35.
A veteran who disagrees with the Board’s decision can fur-
ther appeal the decision to the Court of Appeals for Veterans
Claims (“Veterans Court”), an independent Article I court
created by the Veterans’ Judicial Review Act of November
18, 1988, Pub. L. No. 105-687.12 A veteran claimant must file
a notice of appeal with the Veterans Court within 120 days of
the Board of Veterans’ Appeals’ final decision. 38 U.S.C.
§ 7266(a). He may then further appeal an adverse decision by
the Veterans Court to the U.S. Court of Appeals for the Fed-
eral Circuit, which has authority to “decide all relevant ques-
tions of law,” 38 U.S.C. § 7261(a), and he may ultimately
12
The Court of Appeals for Veterans Claims has seven judges, who are
appointed by the President and confirmed by the Senate to serve a fifteen-
year appointment.
6314 VETERANS FOR COMMON SENSE v. SHINSEKI
petition for certiorari in the Supreme Court of the United
States.
B
More than 830,000 ratings claims are filed with the VBA
each year. On April 12, 2008, there were 400,450 claims for
service-connected death and disability compensation pending
before the VBA. The district court found that approximately
11 percent of all ratings claims lead to a Notice of Disagree-
ment being filed by a veteran and four percent of all ratings
claims proceed to an appeal to the Board of Veterans’
Appeals.
Throughout the appeals process, veterans (or their surviv-
ing relatives) seeking service-connected death and disability
compensation are constrained by various time limits, and a
failure to timely file at any point in the process can result in
forfeiture of the appeal.13 In contrast, the VBA is not subject
to any statutory or regulatory time limits at any step of the
process.
Veterans experience long delays in the consideration and
adjudication of service-connected death and disability claims,
particularly when such claims are appealed. The VBA’s stated
goal is to process all initial ratings claims within 125 days.
The district court found, however, that it takes, on average,
182 days for a regional office to issue an initial decision on
a veteran’s claim for service-connected death and disability
compensation. Indeed, as of April 12, 2008, there were
101,019 rating-related claims that had been pending for over
13
Following the Supreme Court’s recent decision in Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197 (2011), the 120-day deadline
within which veterans may file an appeal from the Board of Veterans’
Appeals to the Veterans Court is no longer treated as jurisdictional. Id. at
1206. The deadline is nevertheless strict, and it remains unclear whether
it is subject to equitable tolling or any other exception. Id. at 1206 & n.4.
VETERANS FOR COMMON SENSE v. SHINSEKI 6315
180 days. The district court found that, because of the inher-
ent complexities in proving a PTSD diagnosis, service-
connected death and disability compensation claims that are
based on PTSD take longer to adjudicate than other “average”
claims.
In cases in which a veteran files a Notice of Disagreement
with a Regional Office, the district court found that in 2008
it took approximately 261 days for a Regional Office to mail
a Statement of the Case to the veteran. In some cases, veter-
ans had to wait more than 1,000 days for the Regional Office
to issue the Statement of the Case. The district court found
that upon receipt of the Statement of the Case, it took the vet-
eran 43 days, on average, to file a Form 9 substantive appeal.
The district court then found that it took 573 days, on average,
for the Regional Office to certify an appeal to the Board of
Veterans’ Appeals upon receipt of the veteran’s Form 9 — a
merely ministerial act. Some veterans have had to wait more
than 1,000 days for the Regional Office to certify their appeal
to the Board.
The district court found that veterans who appeal directly
to the Board wait, on average, 336 days for the Board to issue
a decision in their cases. Some veterans elect to have a hear-
ing — at their own expense — in front of a Board of Veter-
ans’ Appeals judge. Those veterans who receive hearings are
more likely to prevail on their appeal, but they must wait an
average of 455 days for that hearing.
For veterans who pursue an appeal by filing a Notice of
Disagreement with the Regional Office’s initial decision,
seeking a Statement of the Case, and then file an appeal with
the Board, the district court found that it takes on average
1,419 days (3.9 years) from the veteran’s initial filing of the
Notice of Disagreement to the veteran’s receiving a decision
from the Board. It therefore takes approximately 4.4 years
from the date of the veteran’s initial filing of a service-
connected death and disability compensation claim to the final
6316 VETERANS FOR COMMON SENSE v. SHINSEKI
decision by the Board (not including any time that may have
elapsed between the Regional Office’s initial rating decision
and the veteran’s filing of his Notice of Disagreement, which
may be up to one year).
During the district court proceedings in this case, senior
VA officials were questioned about the extraordinary delays
in the VBA’s claims adjudication appeal system. None of
those officials, however, was able to provide the court with a
sufficient justification for the delays incurred. Bradley Mayes,
the Director of Compensation and Pension Services at the
VBA, testified at a deposition that the VBA had not “made a
concerted effort to figure out what [wa]s causing” the lengthy
delays in its resolution of the appeals of veterans claims for
service-connected death and disability compensation. And at
trial, James Terry, the Chairman of the Board of Veterans’
Appeals, was unable to explain the lengthy delays inherent in
the appeals process before the Board.
The record before the district court suggests that errors
made by ratings specialists at the Regional Office level play
a significant role in the lengthy delays that veterans experi-
ence in the adjudication of their claims. On average, the
Board affirms a Regional Office’s disposition of a case only
40 percent of the time, grants a veteran’s appeal 20 percent of
the time, and remands the case to the VBA for further pro-
ceedings in 40 percent of cases. Between 19 and 44 percent
of these remands are so-called “avoidable remands,” defined
as occurring when “an error is made by the R[egional] O[f-
fice] before it certifies the appeal to the B[oard].” The district
court found that almost half of the “avoidable remands”
between January 1, 2008, and March 31, 2008, occurred as a
result of violations by VBA employees of their duty to assist
veterans. Approximately 75 percent of the claims that are
remanded by the Board of Veterans Appeal are subsequently
appealed to the Board a second time. The district court found
that it takes the Board, on average, 149 days to render a sec-
VETERANS FOR COMMON SENSE v. SHINSEKI 6317
ond decision on a claim that it has already remanded once to
the VBA.
The district court found that, following remand, it takes the
VBA an average of 499.1 days to grant or withdraw a service-
connected death and disability compensation claim, or to
return it once again to the Board. It takes even longer, on
average, for PTSD claims to be processed on remand — 563.9
days. Many veterans suffering from serious disabilities,
including PTSD, suffer substantial and severe adverse conse-
quences as a result of this lengthy delay. In just the six
months between October 2007 and April 2008, at least 1,467
veterans died during the pendency of their appeals.
III. History of the Case
On July 23, 2007, Veterans for Common Sense and Veter-
ans United for Truth filed a complaint in the district court
seeking declaratory and injunctive relief, on behalf of them-
selves, their members, and a putative class composed of all
veterans with PTSD who are eligible for or receive VA medi-
cal services, and veteran applicants for and recipients of
service-connected death or disability compensation benefits
based upon PTSD. In the complaint, Veterans raised numer-
ous statutory and constitutional challenges to the procedures
the VA employs in its provision of health care services and
adjudication of benefits claims.14
With respect to the VHA’s duty to provide veterans with
mental health care, the Veterans challenged the following
VHA practices and procedures, which, they claim, violate vet-
erans’ statutory entitlements and constitutional right to due
process:
14
Not all of these claims are maintained on appeal, and this opinion
addresses only those that are.
6318 VETERANS FOR COMMON SENSE v. SHINSEKI
(1) VHA mental health care waiting lists are
extremely long, resulting in lengthy delays and in
some cases “the absence of any care,” and there are
no transparent procedures in place for a veteran to
appeal his placement on such a waiting list
(2) Mental health care is unavailable or inaccessible
at some VHA facilities and there are no procedures
in place to improve accessibility
(3) The VHA has no procedure through which Veter-
ans can obtain expedited relief in urgent cases such
as an imminent suicide threat
(4) The VHA had delayed implementing governmen-
tal recommendations for improve procedures per-
taining to clinical care and education
With respect to the VBA’s duty to provide veterans with
service-connected death and disability benefits, the Veterans
challenged the constitutionality of the following VBA prac-
tices and procedures:
(1) The VBA acts as both the trier of fact and adver-
sary at the Regional Office stage of the adjudication
of claims for service-connected death and disability
compensation claims
(2) There are no neutral judges or trial-like proce-
dures at the VBA Regional Office stage of the adju-
dication of claims for service-connected death and
disability compensation claims
(3) There is no procedure through which veterans
may obtain discovery to support SCDDC claims
(4) There is no procedure whereby a veteran might
compel the attendance of any VA employees or most
VETERANS FOR COMMON SENSE v. SHINSEKI 6319
other witnesses to testify and support their claims at
service-connected death and disability compensation
claim hearings
(5) There is no class action procedure available in
front of the VA
(6) The Veterans Court has a limited role and is
unable to award injunctive or declaratory relief
(7) There is no judicial authority or mechanism to
enforce judicial decisions or to require the agency of
original jurisdiction (the Regional Offices of the
VBA) to obey or comply with the rule of law
(8) The attorney’s fee prohibition of 38 U.S.C.
§ 5904(c)(1) and the related provision for criminal
penalties, 38 U.S.C. § 5905 prejudice veterans by
curtailing their ability to bring suit
Veterans therefore sought declaratory and injunctive relief.
Veterans asked the district court to declare, among other
things, that:
(1) The challenged VA practices, including the lack
of procedures to remedy delays in the provision of
medical care and treatment, violate Veterans’s right
to due process
(2) Veterans are not barred from pursuing remedies
in the federal courts
(3) The VA has a mandatory obligation to provide
medical care to returning veterans under 38 U.S.C.
§ 1710(e)(1)(D)
Veterans sought to compel the VA to:
6320 VETERANS FOR COMMON SENSE v. SHINSEKI
(1) Implement the recommendations of the Mental
Health Strategic Plan
(2) Implement the recommendations of the Feeley
Recommendation
(3) Provide free medical care to all returning veter-
ans for the maximum period specified in 38 U.S.C.
§ 1710(e)(1)(2) (5 years)15
(4) Expand the VHA clinical appeals process to
allow for appeals of administrative scheduling delays
for the provision of mental health care
And Veterans sought to enjoin the VA from:
(1) Permitting very protracted delays in the provision
of medical care to individuals with PTSD and in the
adjudication of PTSD benefits claims
(2) Destroying, altering, or doctoring records in vet-
erans’ claim files
(3) Prematurely denying PTSD and other service-
connected death and disability compensation claims
(4) Allowing Washington, DC-based officials to
assert extra-judicial pressure and influence upon the
adjudication of individual claims by VA Regional
Offices
The VA filed a motion to dismiss, which the district court
15
Veterans’s complaint states that this period is “two years.” The statute,
however, specifies that the relevant period is five years. See 38 U.S.C.
§ 1710(e)(1)(D), (e)(3)(C)(i). The district court correctly found “that this
language create[s] an entitlement to health care for veterans for five years
after separation from active duty.”
VETERANS FOR COMMON SENSE v. SHINSEKI 6321
denied. After Veterans moved for a preliminary injunction on
their mental health care claims, the district court held an evi-
dentiary hearing. Instead of ruling on the motion for a prelim-
inary injunction, the district court deferred its ruling and
merged the hearing with a trial on the merits, which began six
weeks later. The trial addressed both Veterans’s mental health
care claims and their compensation adjudication claims.
Veterans objected to the expedited trial schedule and limi-
tations on discovery, and the district court overruled the
objections. To meet the advanced trial date, the district court
created a modified, expedited discovery schedule. On appeal,
Veterans challenge two discovery rulings — one relating to
the production of suicide incident briefs and the other relating
to an interrogatory concerning the average length of time to
process a PTSD compensation claim at the initial Regional
Office level — which are addressed further in the Analysis,
infra. Veterans argue that, in each instance, they were sub-
stantially prejudiced by the district court’s ruling.
The district court held a seven-day bench trial. Two months
later, the district court issued a thorough Memorandum of
Decision, Findings of Fact and Conclusions of Law. Veterans
for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Cal.
2008). The district court concluded that Veterans had standing
to bring suit on behalf of their members, because the interests
at stake in the case were germane to the purposes of both
organizations, both organizations’ members had suffered inju-
ries in fact, there was a causal connection between the injuries
and the VA’s conduct, and the relief sought would likely
result in the amelioration of the injuries. 563 F. Supp. 2d at1077 (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000); Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992)).16
(Text continued on page 6323)
16
We agree with the district court’s conclusion on this point, and the
government does not challenge it. Veterans’ members would individually
have standing; the “interests [they] seek[ ] to protect are germane to the
6322 VETERANS FOR COMMON SENSE v. SHINSEKI
organization[s’] purpose[s]”; and because their challenge is a systemic one
seeking prospective relief — not an attack on past, individual benefits
determinations — “neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” See Hunt
v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343
(1977).
We note that in a recent case, the D.C. Circuit concluded that a different
veterans’ organization did not have standing to bring a suit against the
VBA on behalf of its members because the suit expressly sought judicial
review of “the average processing time at each stage of the claims pro-
cess.” Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 662 (D.C. Cir.
2010). The D.C. Circuit, noting that “an association has standing to sue
only if one member would have standing on his or her own right,” inter-
preted the organization’s claim as not seeking relief for an injury to any
individual member of the organization, because “the average processing
time does not cause affiants injury; it is only their processing time that is
relevant.” Id.Here, by contrast, Veterans complain of a variety of injuries actually
being experienced or likely to be experienced in the near future by their
members, including stalled disability claims pending in the VBA, and
mental health that is deteriorating in the absence of treatment by the VHA.
They allege that those injuries are caused by the VA’s systemic failures,
particularly the lack of adequate procedures for processing veterans
requests for health care from the VHA or claims adjudication by the VBA,
and that appropriate procedural safeguards would redress their members’
injuries by ensuring that the services and benefits to which they are enti-
tled are delivered before it is too late — i.e., before their illnesses worsen
or result in their deaths, and before their families are financially ruined.
Veterans do rely upon average waiting times, among much other data and
evidence, to illustrate those failures, but, unlike in Vietnam Veterans, Vet-
erans do not allege that the “average” wait times themselves cause their
members’ injuries. Rather, they argue that it is the absence of constitution-
ally required procedural safeguards that causes those injuries and the high
risk of future injury. In a suit for prospective relief, that potential for
immediate harm is sufficient to establish organizational standing. See, e.g.,
Florida State Conference of NAACP v. Browning, 522 F.3d 1153, 1160
(11th Cir. 2008) (“When the alleged harm is prospective, we have not
required that the organizational plaintiffs name names [of individual mem-
bers] because every member faces a probability of harm in the near and
definite future.”) (emphasis added). Veterans may represent their members
VETERANS FOR COMMON SENSE v. SHINSEKI 6323
The district court nonetheless denied each of Veterans’s
claims. With respect to their APA challenge to the VHA’s
untimely and/or ineffective healthcare appeals procedures and
the inadequacies of the implementation of the Mental Health
Strategic Plan, the court concluded that Veterans’s claim did
not pertain to a discrete, “final agency action,” and thus it
could not be raised under the APA. See 5 U.S.C. §§ 704,
706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55(2004). Moreover, the court found that 38 U.S.C. § 1710“commits decisions about the provision of medical care to the
Secretary’s discretion,” and that “courts [have] no meaningful
standards against which to judge the agency’s exercise in dis-
cretion.” Finally, the court found insufficient evidence of
system-wide delays in the provision of mental health care to
support a determination that agency action was “unreasonably
delayed” under the APA, even if the VA’s action were
reviewable.
The district court further ruled that it did not have jurisdic-
tion to order the VA, within 150 days, to fully implement the
Mental Health Strategic Plan, because Veterans’s request was
barred by the APA for three separate reasons. First, the dis-
trict court considered Veterans’s complaint to be one pertain-
ing to the manner and speed with which the plan had been
implemented — the sufficiency of an agency action, rather
interests now; individual members need not wait to bring individual claims
until it is too late to obtain meaningful relief. Cf. Sandusky County Demo-
cratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (“[Plaintiff
organizations] have not identified specific voters who will seek to vote at
a polling place that will be deemed wrong by election workers, but this is
understandable . . . . [A] voter cannot know in advance that his or her
name will be dropped from the rolls, or listed in an incorrect precinct, or
listed correctly but subject to a human error by an election worker who
mistakenly believes the voter is at the wrong polling place. It is inevitable,
however, that there will be such mistakes. The issues [plaintiffs] raise are
not speculative or remote; they are real and imminent.”). Veterans have
simply done a better job alleging the facts required to establish their stand-
ing than did the plaintiff organization in Vietnam Veterans.
6324 VETERANS FOR COMMON SENSE v. SHINSEKI
than a complaint about the agency’s failure to act. Second,
because the MHSP “consists of 265 recommendations” the
district court found it “dubious” that it could be characterized
as “discrete agency action” and found that such “recommen-
dations” were not “actions the VA ‘is required to take.’ ”
Third, and finally, the district court found that as the MHSP
was a five-year plan and was, at the time of the court’s ruling,
in its fourth year of implementation, it was still ongoing, and
thus was not a final agency action. The district court used the
same rationale to reject Veterans’s request that it order the
VA to fully implement the recommendations of the Feeley
memo within 150 days.
As to Veterans’s due process challenge to the VHA’s fail-
ure to provide timely care, the district court found no constitu-
tional violation. It reasoned that while veterans presenting
with mental health emergencies are not treated immediately
“every time,” Veterans “did not prove a systemic denial or
unreasonable delay in mental health care.” The court deemed
adequate the VA’s clinical appeals process, which struck “an
appropriate balance between safeguarding the veteran’s inter-
est in medical treatment and permitting medical treatment
without overly burdensome procedural protections.”
The district court also denied each of Veterans’s claims
pertaining to benefits adjudication. The district court con-
cluded that 38 U.S.C. § 511 prevented it from reviewing
delays in the adjudication of individual veterans’ claims, and
“the issue of whether a veteran’s benefits claim adjudication
has been substantially delayed will often hinge on specific
facts of that veteran’s claim.” Furthermore, it concluded that
if it were to provide the injunctive relief that Veterans sought,
including ordering the VBA to shorten its average wait times,
“such an order would invariably implicate VA regulations,”
which are subject to judicial review in the Federal Circuit
only under 38 U.S.C. § 502.
The district court further concluded that neither the delays
in adjudicating service-connected death and disability com-
VETERANS FOR COMMON SENSE v. SHINSEKI 6325
pensation benefits claims, nor the lack of procedural protec-
tions for individuals making such claims, was unreasonable
under the APA or violative of due process. While the court
found these delays “significant” and did not “dispute that the
health and welfare of veterans is at stake,” it determined that
it could not find the delays “unreasonable” under the APA
because Congress had established no specific timetable for
claims adjudication and because the delays resulted, in part,
from “the VA’s decision to emphasize initial claim adjudica-
tion at the expense of appeals.” Finally, the court found no
due process violation because “ ‘[d]elay is a factor but not the
only factor’ ” in “ ‘determining when due process is no longer
due process because past due.’ ” (Quoting Wright v. Califano,
587 F.2d 345, 354 (7th Cir. 1978)).
Ultimately, the district court concluded that the remedies
sought by Veterans were beyond its power “and would call
for a complete overhaul of the VA system, something clearly
outside of this Court’s jurisdiction.” The district court there-
fore denied Veterans’s request for a permanent injunction,
and granted judgment in favor of the VA. Veterans timely
appealed.17
ANALYSIS
I
We begin by confirming our jurisdiction to hear Veterans’s
constitutional claims.18
17
The district court denied Veterans’s request for injunctive relief based
upon its answers to questions of law, so we review its decision de novo.
See Gathright v. City of Portland, 439 F.3d 573, 576 (9th Cir. 2006). We
rely on the facts as they were found by the district court, except to the
extent those findings were clearly erroneous. Preminger v. Peake, 552
F.3d 757, 765 n.7 (9th Cir. 2008).
18
For the reasons that are set forth below, the agency actions Veterans
challenge under the Administrative Procedure Act are not reviewable
under the terms of that statute, so we need not consider other bars to
review of those claims.
6326 VETERANS FOR COMMON SENSE v. SHINSEKI
A. Sovereign Immunity
By seeking an injunction against the VA and its agencies,
Veterans have brought suit against the federal government.
The federal government has historically enjoyed immunity
from suit, notwithstanding that the principle of sovereign
immunity derives from the English legal notion that “the King
can do no wrong”; this surely was not a principle that those
who fought for our country’s independence happily imported
into our legal system. Nevertheless, it is well-established that
“the United States cannot be lawfully sued without its consent
in any case.” United States v. Lee, 106 U.S. 196, 205 (1882).
The VA does not assert that it is immune from suit over Vet-
erans’s constitutional claims, but we address the issue because
the district court determined that sovereign immunity pre-
cluded consideration of those claims.
[1] We hold that sovereign immunity does not bar adjudi-
cation of Veterans’s constitutional claims, because Congress
has expressly waived such immunity. The second sentence of
§ 702 of the APA states:
An action in a court of the United States seeking
relief other than money damages and stating a claim
that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under
color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is
against the United States or that the United States is
an indispensable party.
5 U.S.C. § 702. As the Supreme Court has held with regard
to this provision, “complaints [for] declaratory and injunctive
relief [are] certainly not actions for money damages.” Bowen
v. Massachusetts, 487 U.S. 879, 893 (1988). Veterans’s
prayers for declaratory relief and an injunction thus fit
squarely within this waiver.
VETERANS FOR COMMON SENSE v. SHINSEKI 6327
The district court nonetheless found that “waiver of sover-
eign immunity under § 702 of the APA is limited by § 704.”
Section 704 states, in relevant part, “Agency action made
reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial
review.” The district court reasoned that because the delays
Veterans challenge are neither made reviewable by any statute
nor a “final agency action,” even their constitutional claims
fall outside of § 702’s waiver of sovereign immunity. This
was error. Whether the challenged delays constitute “final
agency action” is an inquiry that is relevant to Veterans’s
claims under the APA itself, which are addressed below. But
§ 704 in no way limits § 702’s broad waiver of sovereign
immunity with respect to suits for injunctive relief against the
federal government — suits for which the APA itself is not
the cause of action.
In Presbyterian Church (U.S.A.) v. United States, 870 F.2d
518 (9th Cir. 1989), we held that “§ 702’s waiver of sovereign
immunity is [not] limited to instances of ‘agency action’ ” as
defined by the APA. Id. at 525. We found that the first sen-
tence of § 702 does address “agency action” specifically: “A
person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof.” 5 U.S.C. § 702. But we determined that the waiver
of sovereign immunity in the second sentence, which was
added to the statute in 1976, “contains no such limitation.”19
19
Reviewing the legislative history of the 1976 amendment, we
explained:
Congress observed that before the amendment to § 702, litigants
seeking such nonmonetary relief were forced to resort to the
“legal fiction” of naming individual officers, rather than the gov-
ernment, as defendants an approach that was “illogical” and “be-
cloud[ed] the real issue whether a particular governmental
activity should be subject to judicial review, and, if so, what form
of relief is appropriate.” The need to channel and restrict judicial
6328 VETERANS FOR COMMON SENSE v. SHINSEKI
Presbyterian Church, 870 F.2d at 525. To the contrary,
“[n]othing in the language of the amendment suggests that the
waiver of sovereign immunity is limited to claims challenging
conduct falling in the narrow definition of ‘agency action.’ ”
Id. We therefore found that sovereign immunity had been
waived as to the Church’s First and Fourth Amendment chal-
lenges to surveillance conducted by the Immigration and Nat-
uralization Service in its congregations, even though the
INS’s investigations did not constitute “agency action” under
the APA. Id.The district court noted, however, that nine years after
Presbyterian Church, we stated summarily: “[T]he APA’s
waiver of sovereign immunity contains several limitations. Of
relevance here is § 704, which provides that only ‘[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court, are sub-
ject to judicial review.’ ”20 Gallo Cattle Co. v. Department of
Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998). But it is
Presbyterian Church and not Gallo Cattle that controls
where, as here, a plaintiff ’s challenge is constitutional and
thus not dependent on the APA for a cause of action.
control over administrative agencies, Congress concluded, could
better be achieved through doctrines such as statutory preclusion,
exhaustion, and justiciability, rather than through “the confusing
doctrine of sovereign immunity.” Accordingly, § 702 was
designed to “eliminate the defense of sovereign immunity as to
any action in a Federal court seeking relief other than money
damages and stating a claim based on the assertion of unlawful
official action by an agency or by an officer or employee of the
agency.”
Presbyterian Church, 870 F.3d at 524 (internal citations and footnote
omitted) (citing H. Rep. No. 1656, 94th Cong., 2d Sess. 5, reprinted in
1976 U.S.C.C.A.N. 6121, 6123-6130). We assumed that the “legal fiction”
referred to by Congress was that created by Ex parte Young, 209 U.S. 123(1908), and its progeny. Presbyterian Church, 870 F.3d at 524 n.7.
20
Gallo Cattle did not cite Presbyterian Church or any other authority
for this holding.
VETERANS FOR COMMON SENSE v. SHINSEKI 6329
The first and second sentences of § 702 play quite different
roles, each one significant. The first sentence entitles
aggrieved individuals to “judicial review of federal agency
action.” The second sentence, added to the statute decades
later, waived sovereign immunity for “[a]n action in a court
of the United States seeking relief other than money damages
. . . .” One such action, of course, is a suit for “judicial review
of federal agency action” of the sort authorized by the first
sentence. But other actions exist too. Injunctions may be
sought, for example, to enforce the Constitution itself; courts
need no statutory authorization to undertake constitutional
review. See, e.g., Bell v. Hood, 327 U.S. 678, 684 (1946)
(“[I]t is established practice for this Court to sustain the juris-
diction of federal courts to issue injunctions to protect rights
safeguarded by the Constitution . . . .”).
Gallo Cattle considered a challenge to an agency order
denying the plaintiffs preliminary relief while they adjudi-
cated the merits of their petition before an administrative
board — that is, interim relief to which the plaintiffs believed
themselves entitled by statute and the agency’s regulations.21
Id. at 1198-1200. The plaintiffs sought “judicial review of
agency action” not because it was unconstitutional, but
because it violated the rules governing the agency. For that
type of suit, the plaintiffs’ cause of action was the APA itself,
so we applied § 704’s limitation on what agency action is
reviewable — meaning subject to “judicial review” under the
first sentence of § 702 — and concluded that because § 704’s
terms were not satisfied, the first sentence of § 702 did not
authorize judicial review. Consequently, sovereign immunity
could not be waived because the plaintiffs failed to bring a
21
The plaintiff ’s claim on the merits before the administrative board
concerned a First Amendment challenge. Gallo Cattle, 159 F.3d at 1196.
That claim was not before the court, however. The plaintiffs appealed only
from the agency’s denial of its request “to pay [the challenged] assess-
ments into escrow pending a decision on the merits of the petition” — a
matter solely of the agency’s procedure for adjudicating disputes through
its administrative process. Id.6330 VETERANS FOR COMMON SENSE v. SHINSEKI
cognizable “action” in court. Id. at 1198 (addressing the
“waiver of sovereign immunity in suits seeking judicial
review of a federal agency action under [28 U.S.C.] § 1331”)
(emphasis added)).
[2] As in Presbyterian Church, the plaintiffs here raise a
constitutional challenge, which does not depend on the cause
of action found in the first sentence of § 702. Section 704’s
limitation of that first sentence is thus inapplicable, and the
district court’s reliance on Gallo Cattle was incorrect.22
Instead, because Veterans have brought “[a]n action in a court
of the United States seeking relief other than money dam-
ages” that arises under the Constitution itself, as in Presbyte-
rian Church, we find that sovereign immunity has been
waived by § 702’s second sentence.
We find additional support for this conclusion in a decision
of the D.C. Circuit that rejected similar arguments to those
made by the government and accepted by the district court
here. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), that
court declined to adopt the FTC’s position that “(1) the waiver
[of sovereign immunity under § 702] applies only to actions
arising under the APA; and (2) since review under APA § 704
is limited to ‘final agency action,’ the waiver of sovereign
immunity is similarly restricted to conduct that falls within
that compass.” Id. at 186. Undertaking an analysis identical to
ours in Presbyterian Church, the court determined that “noth-
22
While incorrect, the district court’s confusion was reasonable. The
district court cited Gros Ventre Tribe v. United States, 469 F.3d 801 (9th
Cir. 2006), a prior decision of this court that discussed both Presbyterian
Church and Gallo Cattle and observed in passing that it “saw no way to
distinguish” the two cases. Id. at 809. The Gros Ventre Tribe court ulti-
mately resolved the case on other grounds. For the reasons just provided,
we find Presbyterian Church and Gallo Cattle readily distinguishable:
Presbyterian Church concerns § 702’s waiver of sovereign immunity as
to constitutional challenges, while Gallo Cattle concerns challenges under
the APA itself. Section 704 constrains only the latter situation, and it is the
former type that we are presented with here.
VETERANS FOR COMMON SENSE v. SHINSEKI 6331
ing in the language of the second sentence of § 702 . . .
restricts its waiver to suits brought under the APA,” and thus
the waiver applied to the plaintiff ’s First Amendment claim
there. Id. Moreover, the court “h[e]ld that the waiver applies
regardless of whether the [agency’s challenged conduct] con-
stitutes ‘final agency action’ ” under § 704. Id. at 187 (citing
Presbyterian Church, 870 F.2d at 525). This is consistent with
our holding that § 702’s waiver of sovereign immunity
applies more broadly than to actions under the APA itself. We
therefore hold that, as to Veterans’s constitutional claims for
“relief other than money damages,” § 702 waives sovereign
immunity regardless of whether the claims arise from “agency
action” as defined by the APA.23
B. The Veterans Judicial Review Act
The Veterans Judicial Review Act (“VJRA”) prohibits judi-
cial review of “the decision of the Secretary [of Veterans
Affairs] as to any” “question[ ] of law and fact necessary to
a decision by the Secretary under a law that affects the provi-
sion of benefits by the Secretary to veterans or the dependents
or survivors of veterans.” 38 U.S.C. § 511(a). The VA argues
that this provision precludes us from considering Veterans’s
second constitutional challenge, concerning the procedure for
the adjudication of claims for disability benefits. The dissent
goes even further and suggests that the VJRA forecloses our
ability to decide Veterans’s first constitutional challenge,
regarding delays in mental health care services, as well. We
disagree as to both challenges, and shall explain why below
in the context of each claim.
23
We note that even if we did not find a waiver of sovereign immunity
here, Veterans’s constitutional challenge could proceed against all individ-
ual defendants under Ex Parte Young — precisely the fiction for which
Congress sought to eliminate the need in adding the second sentence of
§ 702.
6332 VETERANS FOR COMMON SENSE v. SHINSEKI
II
We first address Veterans’s statutory and constitutional
claims concerning the delays in VHA’s provision of mental
health care. The number of veterans diagnosed as suffering
from mental illnesses, and the percentage of those who are
awaiting treatment, is simply staggering. As of April 2008, at
least 85,450 veterans were languishing on VHA waiting lists
for mental health care — a number that may significantly
under-represent the scale of the problem both then and now.24
The urgent need to provide veterans with the mental health
care to which they are entitled is clear, not least in light of the
high suicide rate among this vulnerable population. In the
absence of procedures designed specifically to safeguard vet-
erans’ rights to timely, effective treatment, veterans are suf-
fering and dying, heedlessly and needlessly.
Veterans contend that the introduction of a formal appeals
process to allow a veteran to contest an administrator’s deci-
sion to place him on a waiting list for mental health care, of
more transparent clinical appeals procedures, and of a proce-
dure permitting veterans with PTSD to seek expedited access
to mental health care in acute cases, would save lives. The
district court ruled that Veterans have no recourse in the fed-
eral courts to contest the VA’s systematic failure to provide
veterans with procedures safeguarding their access to the
mental health care to which they are statutorily entitled. In
some respects, the district court is correct. In others, it erred
in so ruling. Although our power is limited under the APA
and we cannot grant Veterans the relief they seek as to their
statutory challenge, we hold that their constitutional right to
due process has been violated, reverse the district court’s rul-
ing in this respect, and remand this appeal for further proceed-
ings.
24
As noted earlier, supra note 9, some veterans are not even placed on
formal waiting lists until they have already waited for a month.
VETERANS FOR COMMON SENSE v. SHINSEKI 6333
A. APA Challenge to Mental Health Care Delivery
Delays
Given the provisions of the APA and controlling Supreme
Court law, the district court properly denied Veterans’s APA
challenge to the VHA’s delays in providing timely and effec-
tive mental health care, notwithstanding the many evident
deficiencies in the VHA’s provision of such care.
Under the APA, courts are empowered to “compel agency
action unlawfully withheld or unreasonably delayed.” 5
U.S.C. § 706(1). In Norton v. Southern Utah Wilderness Alli-
ance, however, the Supreme Court interpreted the scope of
this statutory provision and held that “a claim under § 706(1)
can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to
take.” 542 U.S. 55, 64 (2004). With regard to the discreteness
requirement, the Court stated that the “failure to act” is “prop-
erly understood as . . . a failure to take one of the agency
actions (including their equivalents) earlier defined in [5
U.S.C.] § 551(13).” Id. at 62. Agency actions defined in 5
U.S.C. § 551(13) include issuance of a rule, order, license,
sanction, relief or equivalent benefit. The Norton Court sug-
gested that, for example, “the failure to promulgate a rule or
take some decision by a statutory deadline” would constitute
the failure to take a discrete agency action. Norton, 542 U.S.
at 63.
An agency action may therefore be reviewed and com-
pelled by a federal court under § 706(1) only if that action is
one which is legally required. Id. Quoting the Attorney Gen-
eral’s Manual on the APA, the Norton Court stated “§ 706(1)
empowers a court only to compel an agency ‘to perform a
ministerial or non-discretionary act,’ or ‘to take action upon
a matter, without directing how it shall act.’ ” Id. at 64 (quot-
ing Attorney General’s Manual on the Administrative Proce-
dure Act 108 (1947)). In limiting APA review to required
agency actions, the Court held, Congress “rule[d] out judicial
6334 VETERANS FOR COMMON SENSE v. SHINSEKI
direction of even discrete agency action that is not demanded
by law” under the APA. Id. at 65.
Veterans assert here that the VA has unreasonably delayed
the provision of timely and effective mental health care to eli-
gible veterans by failing to implement the Mental Health Stra-
tegic Plan and the Feeley Memorandum. Implementation of
the Plan and Memorandum would undoubtedly improve the
lot of veterans who are suffering unduly as a result of delays
in the provision of their mental health care. Such implementa-
tion does not, however, fall within the definition provided by
the Supreme Court in Norton of a “discrete action” that the
agency is “required” to take, because no statute or regulation
demands it. Veterans contend that the VA is statutorily
required to provide timely and acceptable medical care under
38 U.S.C. § 1710(a) and 38 U.S.C. § 1705. True, but those
requirements are not so specific as the particular action Veter-
ans seek to compel.
In relevant part, 38 U.S.C. § 1710 requires that the VA fur-
nish hospital care and medical services to certain veterans:
The Secretary . . . shall furnish hospital care and
medical services which the Secretary determines to
be needed—
(A) to any veteran for a service-connected disability;
and
(B) to any veteran who has a service-connected dis-
ability rated at 50 percent or more.
38 U.S.C. § 1710(a)(1). Veterans “who served on active duty
in a theater of combat operations . . . after November 11,
1998” are eligible for health care and services for five years
following discharge. 38 U.S.C. § 1710(e)(1)(D), (e)(3)(C)(i).
Section 1705(a) then obligates the Secretary “[i]n managing
the provision of hospital care and medical services under sec-
VETERANS FOR COMMON SENSE v. SHINSEKI 6335
tion 1710(a)” to prescribe, establish, and operate a system of
annual patient enrollment. In designing this “enrollment sys-
tem,” the Secretary “shall ensure that the system will be man-
aged in a manner to ensure that the provision of care to
enrollees is timely and acceptable in quality . . . .” 38 U.S.C.
§ 1705(b)(1).
[3] Veterans claim that § 1705(a) creates an obligation to
ensure that the VHA as a whole is managed so as to provide
timely care of acceptable quality. We agree. We disagree,
however, with Veterans’s contention that this statutory obliga-
tion mandates the implementation of the Mental Health Stra-
tegic Plan and the Feeley Memorandum, which Veterans
characterize as the VA’s “own determination of what § 1710
requires.” Such a reading overstates the reach of the specific
provisions of § 1705 — particularly in light of the fact that
Veterans have not filed any direct challenge to the Secretary’s
management of the enrollment system itself.
[4] The VA does not dispute that it is required to provide
mental health care to certain veterans. Nor should it dispute
that a delay in providing necessary mental health care would
amount to a wholesale failure to provide care to at-risk veter-
ans under § 1710 and § 1705, insofar as some at-risk veterans
will take their own lives during the delay. The VA is, thus,
obviously required to take action to ensure that, system-wide,
mental health care is provided to at risk veterans in a timely
manner. There is, however, no statutory language that would
specifically obligate the VA to fully implement the remedies
sought by Veterans — the Mental Health Strategic Plan or the
Feeley Memorandum. We are therefore bound by the
Supreme Court’s instruction in Norton that: “General defi-
ciencies in compliance, unlike the failure to issue a ruling . . .
lack the specificity requisite for agency action.” Norton, 542
U.S. at 66.
As the Norton Court recognized, however, agencies may be
required to take actions not only by Congress, but also by
6336 VETERANS FOR COMMON SENSE v. SHINSEKI
themselves. Agency action “demanded by law . . . includes,
of course, agency regulations that have the force of law.” Nor-
ton, 542 U.S. at 65. Even a less formal agency “plan” may “it-
self create[ ] a commitment binding on the agency,” if there
is “clear indication of binding commitment in the terms of the
plan.” Id. at 69, 71. Thus we have held that “agencies may be
required to abide by certain internal policies,” such as their
own “internal procedures.” Alcaraz v. INS, 384 F.3d 1150,
1162 (9th Cir. 2004) (citing Morton v. Ruiz, 415 U.S. 199,
235 (1974)).
Veterans argue that the Mental Health Strategic Plan and
Feeley Memorandum are such required internal policies. But
neither document supports that view. The Plan was designed
to “identif[y] overlap, include[ ] gap analyses, and present[ ]
goals and objectives that articulate a set of proposed strategies
that directly support all the mental health needs of the
enrolled veteran population.” The VA cast the Plan’s particu-
lar strategies as “recommendations.” Nowhere did the agency
commit to binding itself, and we do not find any implied
intent to do so.
The Feeley Memorandum, by contrast, does impose the
affirmative obligation that procedures to ensure veterans
receive mental health evaluations within twenty-four hours of
seeking help “must be implemented by August 1, 2007.” But
the memorandum — a document sent from the Deputy Under
Secretary for Health for Operations and Management to the
VA’s Network Directors — is an internal administrative com-
munication that lacks the force of law. See Rank v. Nimmo,
677 F.2d 692, 698-99 (9th Cir. 1982). Unlike an internal rule
that is officially published within an agency and binding on
its employees, for example, the Memorandum is merely a
charge from a supervisor to his subordinates.
[5] Veterans’s APA claim concerning timely and accept-
able mental health care therefore cannot proceed because Vet-
erans do not assert that the VA “failed to take a discrete
VETERANS FOR COMMON SENSE v. SHINSEKI 6337
agency action that it is required to take” within the meaning
of § 706(1), Norton, 542 U.S. at 64, and so we affirm the dis-
trict court’s ruling on Veterans’s APA-based challenge.
B. Due Process Clause Challenge to Mental Health Care
Delivery Delays
Veterans also claim that the lack of adequate procedures to
ensure that veterans will not suffer needlessly because of
severe delays in the receipt of mental health care violates the
Due Process Clause of the Fifth Amendment. We agree.
1
We first consider whether the VJRA deprives us of juris-
diction to consider this claim. We note at the outset that while
the VA argues vigorously that the VJRA forecloses our con-
sideration of Veterans’s second due process claim, regarding
the disability benefits adjudication process, it does not con-
tend that it affects this claim at all. To the contrary, the VA
acknowledges that “the general nature of plaintiffs’ claims —
which asserted ‘systemic’ delays in the provision of health
care” — falls outside the VJRA’s jurisdictional bar to “chal-
lenges to the medical care or other benefits provided in spe-
cific cases.” Gov’t Br. 33 n.7. A potential jurisdictional flaw
is not a litigant’s issue to waive, of course, so we must con-
sider the issue ourselves notwithstanding the parties’ agree-
ment. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
Still, because the sole participant in this case to even suggest
that the VJRA precludes review of Veterans’s constitutional
challenge to the mental health care delays is our dissenting
colleague, we discuss the issue only briefly.
Section 511(a) provides,
The Secretary shall decide all questions of law and
fact necessary to a decision by the Secretary under
a law that affects the provision of benefits by the
6338 VETERANS FOR COMMON SENSE v. SHINSEKI
Secretary to veterans or the dependents or survivors
of veterans. . . . [T]he decision of the Secretary as to
any such question shall be final and conclusive and
may not be reviewed by any other official or by any
court, whether by an action in the nature of manda-
mus or otherwise.25
The “question of law” presented here is whether the VA’s
lack of procedural safeguards to ensure that veterans timely
obtain the mental health care to which they are entitled —
such as an appeals process to challenge appointment schedul-
ing — violates the Due Process Clause by providing insuffi-
cient process. It is debatable whether that question of law is
one that is “necessary to a decision by the Secretary” affect-
ing veterans’ benefits, like the question of what evidence is
required to make out a benefits claim for service-connected
PTSD. See, e.g., Stressor Determinations for Posttraumatic
Stress Disorder, 75 Fed. Reg. 39,843, 39,843 (July 13, 2010);
see 38 C.F.R. § 3.304(f)(3) (2010). We need not resolve the
issue of necessity, however, because the Secretary has not
actually issued a “decision” answering this constitutional
question at all. The VA may assume and even argue that its
system for providing mental health care services is constitu-
tionally sound, but it has not issued a “decision” on the ques-
tion that is “final and conclusive and” unreviewable, the way
it might issue, for example, a “rating decision” concerning a
particular veteran’s degree of disability for purposes of calcu-
lating compensatory benefits. See 38 U.S.C. § 1156(b)(1)(B).
The dissent argues that “there is simply no way to adjudi-
cate the due process claim without ‘determining first’ whether
the VA’s administrative staff ‘acted properly in handling’ vet-
25
Section 511(b) provides for four exceptions, none applicable here: (1)
the review of VA rules and regulations under § 502, (2) suits in district
court concerning claims related to federally provided insurance, (3) suits
under specific provisions relating to housing and small business loans, and
(4) review by the Board of Veterans’ Appeals and the Veterans Court.
VETERANS FOR COMMON SENSE v. SHINSEKI 6339
erans’ requests for appointments,” which “will depend on the
facts of each veteran’s case” — which we may not review.
Dissenting op. at 6383 (quoting Price v. United States, 228
F.3d 420, 422 (D.C. Cir. 2000) (per curiam) and citing
Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005))
(internal alterations omitted)). But of course there is: Veterans
challenge the lack of adequate procedural safeguards to
ensure that veterans receive timely care. To make out that
claim they must simply demonstrate “the risk of an erroneous
deprivation” of care “through the procedures [currently] used,
and the probable value, if any, of additional of substitute pro-
cedural safeguards.” Mathews v. Eldridge, 424 U.S. 319, 335
(1975) (emphasis added). Veterans need not, and do not, seek
to relitigate in federal court whether VA staff actually “acted
properly in handling” individual veterans’ requests for
appointments, dissenting op. at 6383; no individual veteran is
before us seeking to challenge the timing of an individual
appointment that he just received. Rather, Veterans point to
the past as evidence of the “risk of an erroneous deprivation”
their members now face.
Put differently, this is not a tort suit brought by an individ-
ual veteran, as in the two cases cited by the dissent, where
“underlying the claim is an allegation that the VA unjustifi-
ably denied him a veterans’ benefit.” Thomas, 394 F.3d at 974(emphasis added). The relevant “decision[s]” as to “ques-
tion[s] of law and fact” in those cases were “decision[s]”
about individual benefit determinations, which were insulated
from review as soon as the Secretary had made those “deci-
sion[s].” Instead, this is a suit for an injunction to require that
“additional or substitute procedural safeguards” be provided
in the future, if the cost to the government of such safeguards
is justified by the reduction in risk they would produce.
Mathews, 424 U.S. at 335. The relevant “decision” here as to
a “question of law” is whether the existing safeguards are
constitutionally sufficient; the Secretary has not rendered a
“decision” on that question, so the triggering condition for
§ 511’s preclusive effect does not now exist — assuming the
6340 VETERANS FOR COMMON SENSE v. SHINSEKI
Secretary’s answer to a “question of law” such as this could
ever fit within the meaning of “decision,” which is most
unlikely. See infra, at 6355. The VA is not mistaken in under-
standing that the nature of Veterans’s suit falls outside the
reach of § 511(a).
2
[6] We turn, then, to the merits of Veterans’s due process
claim. The record before us shows that some veterans with
severe depression or PTSD are forced to wait over eight
weeks for mental health referrals. During that period, some of
those veterans take their own lives. The district court found
that there are about 18 suicides per day among veterans,
including four to five suicides per day among veterans
enrolled to receive VA health care.26 In 2008, one VHA physi-
cian identified “about 1,000 suicide attempts per month”
among the veterans seen in VHA facilities.27 The precise con-
26
The VA’s statistics do not differentiate between veterans who are sim-
ply enrolled with the VA, veterans who are receiving other types of (non-
mental health related) medical treatment, veterans who are on waiting lists
for mental health treatment, and veterans currently receiving mental health
care.
27
This figure comes from an email written by the Deputy Chief of
Patient Care Services for VA’s Office of Mental Health on February 13,
2008. The email read as follows:
Shh!
Our suicide prevention coordinators are identifying about 1000
suicide attempts per month among the veterans we see in our
medical facilities. Is this something we should (carefully) address
ourselves in some sort of release before someone stumbles on it?
That email was obtained by Veterans during discovery in this litigation,
and first made public as a result. This message and others like it generated
significant media attention. See, e.g., Armen Keteyian, VA Hid Suicide
Risk, Internal E-Mails Show, CBS News (Apr. 21, 2008), available at
http://www.cbsnews.com/stories/2008/04/21/cbsnews_investigates/main
4032921.shtml. That attention, in turn, prompted a congressional investi-
gation. See The Truth About Veterans’ Suicides, Hearing Before the H.R.
Comm. on Veterans Affairs, 110th Cong., 2d Sess. (May 6, 2008).
VETERANS FOR COMMON SENSE v. SHINSEKI 6341
stitutional question with which we are presented is whether
the VA’s delays in the provision of care amount to a depriva-
tion of “property” without due process, a violation of the Fifth
Amendment.
a
[7] First we must find that Veterans allege a deprivation of
life, liberty, or property. As we discuss above, 38 U.S.C.
§ 1710 creates an entitlement to health care for eligible veter-
ans. The VA does not dispute that this entitlement creates a
property interest protected by the Due Process Clause. Indeed,
it is well-established that “the interest of an individual” in
receipt of government benefits or services to which he is enti-
tled “is a statutorily created ‘property’ interest protected by
the Fifth Amendment.” Mathews, 424 U.S. at 332.
b
Second, we must determine whether Veterans’s members
have been deprived of their property interest. In cases involv-
ing the termination of government benefits, the “deprivation”
is clear. See, e.g., Goldberg v. Kelly, 397 U.S. 257 (1970).
Similarly, we have long held that the outright denial of bene-
fits to which an individual is entitled constitutes deprivation
The dissent gets political reality exactly backwards when it asserts that
“Congress already exercises vigorous oversight of the VA through its abil-
ity to hold hearings on the agency’s operations,” and that “[b]ecause Con-
gress is already actively involved in the agency’s affairs, programmatic
improvements should be made in the offices of the VA or the halls of Con-
gress, not through litigation.” Dissenting op. at 6397 (internal quotation
marks and brackets omitted). To the contrary, this case demonstrates the
crucial role for litigation initiated by injured parties in forcing the govern-
ment to respond. Had the resulting oversight then yielded actual solutions,
this case might have become moot. It is only because the government con-
tinued to fail to correct the VA’s problems that we are compelled to
address the constitutional questions presented here.
6342 VETERANS FOR COMMON SENSE v. SHINSEKI
of a recognized property interest. See, e.g., Nat’l Ass’n of
Radiation Survivors v. Derwinski, 994 F.2d 583, 588 n.7 (9th
Cir. 1992) (denial of application for veterans’ benefits impli-
cates due process); Griffeth v. Detrich, 603 F.2d 118, 120-21
(9th Cir. 1979). Veterans’s claim differs somewhat. They
argue not that their members’ requests for care have been
decided by the VA and finally rejected, but instead that the
delay in the provision of care sought “is tantamount to a
denial of care,” particularly for veterans who are suicidal. We
agree.
In a related context, the Supreme Court has recognized that
“the possible length of wrongful deprivation of . . . benefits
is an important factor in assessing the impact of official action
on . . . private interests.” Fusari v. Steinberg, 419 U.S. 379,
389 (1975). Thus in Fusari, the Court found that excessive
delay in the adjudication of claims for unemployment bene-
fits, during which time benefits were withheld, could yield a
deprivation in its own right regardless of whether benefits
were ultimately restored. And in Cleveland Board of Educa-
tion v. Loudermill, 470 U.S. 532 (1985), the Court reasoned
that “[a]t some point, a delay in [a] post-termination hearing
would become a constitutional violation,” though that point
had not been reached in that case. Id. at 547; see also Barry
v. Barchi, 443 U.S. 55, 66 (1979) (“[I]t was necessary that
Barchi be assured a prompt post-suspension hearing, one that
would proceed and be concluded without appreciable delay.
Because the statute as applied in this case was deficient in this
respect, Barchi’s suspension was constitutionally infirm under
the Due Process Clause of the Fourteenth Amendment.”).
Indeed, “at some point delay must ripen into deprivation,
because otherwise a suit alleging deprivation would forever
be premature.” Schroeder v. City of Chicago, 927 F.2d 957,
960 (7th Cir. 1991) (Posner, J.).
[8] We understand these cases to support the common-
sense proposition that an unreasonable delay in the delivery
of an entitlement can amount to a deprivation of that entitle-
VETERANS FOR COMMON SENSE v. SHINSEKI 6343
ment.28 Veterans who are deprived of timely mental health
care are denied the opportunity to rehabilitate in a more
timely manner and to avoid sinking deeper into depression
and disability. And, of course, for those veterans whose ill-
ness causes them to take their own lives in the interim, the
deprivation is final.
c
Finally, we must decide whether the process designed to
protect veterans against the deprivation of their property inter-
est is sufficient, or whether additional process is due. We
apply the traditional balancing test Mathews v. Eldridge in the
context of veterans’ entitlements. See, e.g., National Ass’n of
Radiation Survivors v. Derwinski, 994 F.2d 583, 588 (9th Cir.
2002).29 The Mathews Court explained that “procedural due
28
Whether that deprivation is actually unconstitutional, because inflicted
without due process, is a distinct question to which we turn next.
29
Contrary to the dissent’s suggestion, Walters v. National Association
of Radiation Survivors, 473 U.S. 305 (1985), did not create a new, special
“high hurdle” for all due process challenges involving veterans. See Dis-
senting op. at 6390, 6396. Walters applied the Mathews formulation and
determined that, in light of the government’s strong, centuries-old interest
in maintaining a veterans’ claims system that is “as informal and nonad-
versarial as possible,” “[i]t would take an extraordinarily strong showing
of probability of error under the present system — and the probability that
the presence of attorneys would sharply diminish that possibility — to
warrant a holding that the fee limitation denies claimants due process of
law.” Id. at 323, 326.
Moreover, Walters was clear that government’s interest in an “informal
and nonadversarial” system, as defined by that case, was limited to “the
system for administering benefits” within the VA. Id. at 321. The dissent
cannot be serious when it suggests that the government has an interest in
an “informal and nonadversarial” resolution to the years of federal-court
litigation in this case. Dissenting op. at 6373, 6390. Although our decision
today is the product of adversarial litigation and results in an injunction
being entered against the VA, it does nothing to compromise the “informal
and nonadversarial” procedures within the VA during the initial adjudica-
tion of claims for veterans benefits. Indeed, in part IV of this opinion we
reaffirm Walters’s holding that the limitation on payments to attorneys
during regional-level agency adjudications does not violate due process.
6344 VETERANS FOR COMMON SENSE v. SHINSEKI
process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within
the meaning of the Fifth . . . Amendment,” Mathews, 424 U.S.
at 332. According to Mathews, the “identification of the spe-
cific dictates of due process” with regard to a deprivation of
a protected interest “generally requires consideration of three
distinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous depri-
vation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including
the function involved and the fiscal and administrative bur-
dens that the additional or substitute procedural requirement
would entail.” Id. at 335.
(1) The district court correctly concluded that, with respect
to the first Mathews factor, “the private interest of veterans in
receiving health care is high.” Proper care can alleviate the
severe toll that PTSD takes on veterans and their families, and
it reduces the incidence of suicide. The district court erred,
however, in its conclusion that the risk of erroneous depriva-
tion was low, and in its determination that Veterans had failed
to prove a systemic denial or unreasonable delay in mental
health care provision that would create a high risk of errone-
ous deprivation. It similarly erred in its conclusion that the
third Mathews factor weighs against imposing additional pro-
cedural safeguards, based upon its erroneous assumption that
such safeguards would impose undue administrative burdens
on the VA. We examine each of the latter two factors in turn.
(2) In weighing the second Mathews factor, the district
court substantially underestimated the risk of erroneous depri-
vation faced by veterans with serious mental illnesses and dis-
orders. Veterans did not prove conclusively at trial that
veterans seeking mental health care face a high risk of detri-
mental delays in the provision of care, but the district court’s
factual findings support the conclusion that there is a signifi-
cant risk that delays in treatment will harm veterans. Mathews
VETERANS FOR COMMON SENSE v. SHINSEKI 6345
requires us to balance that risk of erroneous deprivation
against the “probable value, if any, of additional . . . proce-
dural safeguards.” Mathews, 424 U.S. at 335. In the area of
scheduling veterans for mental health care appointments, the
marginal value of “additional” procedural safeguards is
extraordinarily high, because at present no procedure is in
place to ensure that mental health appointments are provided
soon enough to be effective.
Although a “clinical” decision made by a mental health
care professional — such as a nurse, doctor, or psychologist
— to place a veteran on a waiting list for care may be
appealed, a veteran has no opportunity at all to appeal a recep-
tionist or call center’s “administrative” decision that he must
wait to receive mental health care.30 In the district court, Dr.
Murawsky, the chief medical officer of one of the VA’s 21
national regions, was asked what would happen “if the vet-
eran is told that ‘You get an appointment in 60 days,’ and the
veteran wants an earlier appointment.” He responded that the
VA’s “policy doesn’t cover appointment time.” (Emphasis
added.) Indeed, veterans whose delayed care stems from
administrative decisions have no right to speak with a super-
vising administrator about their need for more immediate
care, nor to insist that they be evaluated by a medical profes-
sional, nor to secure any other review that would lessen the
likelihood that diagnosis and treatment are delayed too long
for their cases.
Only if a scheduling decision were made by a medical pro-
fessional — for example if a “nurse or physician sa[id]
‘You’re medically stable . . . — an appointment in six weeks
is appropriate’ ” — would a veteran have any opportunity to
request a review, through the clinical appeals process. Of
course, at that point the veteran would at least have been eval-
uated by a medical professional — something that a veteran
30
Veterans do not challenge the clinical appeals process, described
supra at 6308-09, here, and so we do not address its adequacy.
6346 VETERANS FOR COMMON SENSE v. SHINSEKI
calling by phone or speaking to a receptionist would not auto-
matically get, unless he walked into a VA emergency room or
clinic and actually “expressed suicidal intentions.” Like most
medical patients, veterans are generally scheduled first by
administrative staff, and then seen second by medical person-
nel (at their scheduled appointments) — not the other way
around, as the dissent suggests.
There is, quite simply, no process for review of a
scheduler’s assignment of a mental health care appointment
weeks in the future. The district court’s suggestion that the
clinical appeals process offers a sufficient procedural safe-
guard for all veterans on VHA waiting lists, including those
placed on such lists by administrators, is clearly contrary to
the record. So too does the dissent improperly confuse the dis-
tinction between clinical delays, for which some process is
provided, and administrative ones, for which there is none.31
[9] The record before us is replete with examples of delete-
rious delay in the VHA’s provision of mental health care, and
shows that many veterans throughout the country have no
means available to appeal the delays to which they are sub-
jected. The record contains one story, for example, of a vet-
eran who committed suicide after calling the VA to report his
suicidal thoughts but was told he would be over 25 places
down on a waiting list for treatment. In another case, a former
U.S. Marine who was at the Pentagon on September 11, 2001,
and later served in Iraq, reported a delay of almost eight
weeks before the VA would see him after “telling the VA
repeatedly that I was suicidal” and having already been diag-
nosed with PTSD. All told, over 84,000 veterans are on wait-
31
We have not “misunderst[ood] [the] evidence” of the existing proce-
dural safeguards, as the dissent suggests, dissenting op. at 6390; we have
simply avoided the error made by the district court and the dissent of
improperly confusing the distinction between clinical delays and adminis-
trative ones and conflating the issues unique to each. See Dissenting op.
at 6390-95.
VETERANS FOR COMMON SENSE v. SHINSEKI 6347
ing lists for mental health care. The district court made no
finding as to the number of veterans who were placed on
waiting lists by administrators, as opposed to clinicians. Vet-
erans argue that vast numbers of veterans are denied access to
mental health care by administrators, and the VA offers no
evidence to rebut this claim. What is clear is that veterans
have no recourse when they are told that they cannot be
scheduled sooner for a mental health appointment.
This absence of procedural safeguards is particularly alarm-
ing in view of the apparent ineffectiveness in the scheduling
system. In July 2005, an “Audit of the Veterans Health
Administration’s Outpatient Scheduling Procedures” con-
ducted by the VA’s Office of Inspector General found that the
“VHA did not follow established procedures when scheduling
medical appointments for veterans seeking outpatient care,”
including mental health care. Two years later, a follow-up
audit revealed that five of the eight recommendations for
improvement made in 2005 had not been implemented. Spe-
cifically, the 2007 report found: 72 percent of patient appoint-
ments had “unexplained” delays between dates care was
requested by veterans and their clinicians and the dates
appointments were scheduled; schedulers were not adequately
trained, particularly on scheduling consult appointments with
specialists; and that pressure to reduce the length of patient
waiting lists had caused schedulers to avoid placing patients
on lists for appointments at all.
Similarly, a 2005 U.S. Government Accountability Office
report on VA services for PTSD found that the VA had not
developed referral mechanisms to provide PTSD services
when those services were not available at community-based
clinics, and challenged the “VA’s capacity to identify and
treat veterans returning from military combat who may be at
risk for developing PTSD, while maintaining PTSD services
for veterans currently receiving them.” And the district court
found that, while the Feeley Memorandum states that veterans
who present to a Medical Center or Community Based Out-
6348 VETERANS FOR COMMON SENSE v. SHINSEKI
reach Center for the first time with mental health issues
should be evaluated within 24 hours, the VA lacks any
method to ensure compliance with this 24-hour evaluation
policy and does not know whether the policy has been imple-
mented.
[10] This is therefore not a case in which existing proce-
dures are sufficient, such that additional process is unlikely to
produce significant marginal reductions in the risk of errone-
ous deprivation. See, e.g., Mathews, 424 U.S. at 343-46.
Instead, the underlying scheduling system is flawed, and there
is no procedure whatsoever for veterans to challenge their
delays. Consequently, any additional procedure would pro-
duce a meaningful improvement in ensuring that veterans are
not left to wait too long to get the care they need.
(3) The district court’s weighing of the third Mathews fac-
tor was similarly erroneous. It concluded that “additional
safeguards” in the VHA’s system for treating veterans with
mental health issues would impose unwarranted “burdens on
the VA.” The district court did not make any specific factual
findings based on the record in the case before us as to the
nature and extent of additional administrative burdens that
would be imposed upon the VA, if additional procedural safe-
guards were introduced to facilitate veterans’ ability to secure
their entitlement to mental health care in a timely and effec-
tive manner. Instead, it appears to have based this conclusion
solely on a quotation plucked from a Supreme Court case
regarding the government’s “ ‘genuine interest in allocating
priority to the diagnosis and treatment of patients . . . rather
than to time-consuming procedural minuets.’ ” (Quoting
Parham v. J.R., 442 U.S. 584, 605 (1979)). The VA now cites
this same language.
Cases are not quotations, however, to be relied upon like
entries in Bartlett’s purely for their convenient turns of phrase.32
32
See BARTLETT’S FAMILIAR QUOTATIONS: A COLLECTION OF PASSAGES,
PHRASES, AND PROVERBS TRACED TO THEIR SOURCES IN ANCIENT AND MODERN
LITERATURE (17th ed. 2002).
VETERANS FOR COMMON SENSE v. SHINSEKI 6349
Rather, cases are clusters of facts and applications of legal
principles to those facts that must be read in whole. Parham,
which examined the due process rights of minors committed
to state psychiatric facilities by their parents, emphasized
Georgia’s “significant interest in not imposing unnecessary
procedural obstacles that may discourage the mentally ill or
their families from seeking needed psychiatric assistance.”
442 U.S. at 605. That is, the Court was concerned that addi-
tional procedure would create delay, which would harm the
state’s interest in making hassle-free treatment available to
families that need it. Indeed, the unabridged sentence from
Parham is: “The State also has a genuine interest in allocating
priority to the diagnosis and treatment of patients as soon as
they are admitted to a hospital rather than to time-consuming
procedural minuets before the admission.” Id. (emphasis
added). Here, the government is not prioritizing the diagnosis
and treatment of patients over unnecessary delay. To the con-
trary, it is embracing delay over effective treatment.
If there is any justification for the VA’s interest in main-
taining the status quo, it has not told us, and we cannot imag-
ine one. Cost — often claimed by the government as an
interest in less robust process — does not seem to be at issue
here. The VA does not mention expense, and as the district
court found, “the VHA’s Chief Financial Officer testified that
the VHA is not currently facing a budget crisis and has ade-
quate money to ‘meet the mission requirements.’ ” Moreover,
the VA has hired more than 3,800 new mental health staff
over the past few years, and 500-600 positions still remain
unfilled. In fact, the only governmental interest we can con-
ceive of is the same as Veterans’s: expediting the provision of
mental health care to save the lives of men and women who
have fought for our country. As the government represented
at oral argument, “The VA is firmly committed to ensuring
that our nation’s veterans receive top-quality health care.”
Oral Arg. Audio at 25:12.
***
6350 VETERANS FOR COMMON SENSE v. SHINSEKI
[11] We have determined that veterans have a towering
interest in avoiding delays in their mental health care, the risk
of erroneous deprivation is high given the absence of review
procedures, the value of additional procedural safeguards
would be great, and the government’s interest does not weigh
against additional protections. The current delays therefore
constitute a deprivation of Veterans’s mental health care with-
out due process, in violation of the Fifth Amendment.
[12] We reverse the district court’s judgment to the con-
trary, and remand for further proceedings. On remand, the dis-
trict court shall conduct hearings in order to determine what
additional procedures or other actions would remedy the
existing due process violations in three core areas. The district
court shall consider what procedural protections are necessary
to ensure that:
(1) individuals placed on VHA waiting lists for
mental health care have the opportunity to
appeal the decision in a timely manner and to
explain their need for earlier treatment to a
qualified individual;
(2) individuals determined to be in need of mental
health care receive that treatment in a timely
manner; and
(3) individuals with urgent mental health problems,
particularly those at imminent risk of suicide,
receive immediate mental health care.
Although, as we have noted earlier, the district court may not
order the VHA to implement the Mental Health Strategic Plan
or institute the recommendations of the Feeley Memorandum,
it may consider specific procedures or measures mentioned in
both to aid in its determination as to what procedures are nec-
essary. The district court’s determination may also draw upon
the findings of the 2007 VA Office of Inspector General
VETERANS FOR COMMON SENSE v. SHINSEKI 6351
Report, and other evidence already in the record or adduced
at a hearing following remand; we recognize that circum-
stances may have evolved since the district court last took evi-
dence three years ago.
We still remain hopeful that at least some of the problems
in this case can be resolved by the parties working together.
The district court should encourage them to meet and confer
to propose a remedial plan that addresses the mental health
care delivery problems described above, to be presented to the
court for approval. It is within the discretion of the district
court to consider obtaining the assistance of a Magistrate
Judge or appointing a Special Master to aid the court in any
way deemed necessary. In the end, the district court shall
either approve a plan agreed upon by the parties or enter an
appropriate order instructing the VHA to provide Veterans
with the procedural safeguards to which they are entitled.
III
We next address Veterans’s statutory and constitutional
claims concerning the delays in the VBA’s claims adjudica-
tion system, particularly in the claims appeals process.
On appeal, Veterans challenge the district court’s denial of
relief for these claims and contend that relief is warranted
under both the APA and the Due Process Clause. Once again,
we affirm the district court’s denial of Veterans’s statutory
claim, but reverse the district court’s ruling on their constitu-
tional claim. We hold that Veterans’s entitlement to service-
connected death and disability compensation is a property
interest protected by the Due Process Clause, and that the lack
of adequate procedures to prevent undue delay in the provi-
sion of that property constitutes a deprivation that violates
Veterans’s constitutional rights.
6352 VETERANS FOR COMMON SENSE v. SHINSEKI
A. APA Challenge to Delays in Compensation Claim
Appeals
In considering Veterans’s APA claim with respect to bene-
fits adjudication, we are, once again, bound by the Supreme
Court’s instruction in Norton that: “General deficiencies in
compliance, unlike the failure to issue a ruling . . . lack the
specificity requisite for agency action.” Norton, 542 U.S. at
66. Veterans’s APA claim concerning timely and acceptable
adjudication of veterans’ service-connected death and disabil-
ity claims cannot proceed because Veterans do not assert that
the VA “failed to take a discrete agency action that it is
required to take.” Id. at 64.
The district court erred in stating: “It is uncontested the
adjudication of benefits claims is a discrete agency action that
the VA is required to take.” That analysis failed to consider
the cornerstone of Veterans’s APA claim. Veterans are chal-
lenging pervasive deficiencies in the adjudication process that
harm their members, not delays in discrete benefits adjudica-
tions that the VA is required to make. As discussed above,
agency action to remedy widespread delays is not a discrete,
“required” action under § 706(1). On this basis alone, Veter-
ans are barred from seeking statutory relief that is dependent
upon the VA’s waiver of sovereign immunity under the APA.
See Norton, 542 U.S. at 63-65. We therefore affirm the dis-
trict court’s dismissal of Veterans’s APA claim, on the basis
that it does not meet the APA requirement for reviewability.33
33
Because Veterans are barred from seeking statutory relief under the
APA, we need not consider the VA’s alternative arguments that 38 U.S.C.
§ 502 or § 511 also bar consideration of Veterans’s statutory claims.
VETERANS FOR COMMON SENSE v. SHINSEKI 6353
B. Due Process Clause Challenge to Delays in Compen-
sation Claim Appeals
1
First we must consider whether we may hear Veterans’s
constitutional claim. The VA argues that we lack jurisdiction
to do so, because the VJRA divests all federal courts but the
Veterans Court and the United States Court of Appeals for the
Federal Circuit of jurisdiction to review any question concern-
ing veterans benefits. We reject that contention. In our view,
the VJRA does not strip district courts of jurisdiction to hear
constitutional challenges to the VA’s system-wide conduct,
divorced from challenges to individual benefits determina-
tions.
The VA points to two sections of the VJRA, sections 502
and 511. Neither applies here.
a. Section 502. 38 U.S.C. § 502 states, “An action of the
Secretary to which [5 U.S.C. §§ 552(a)(1), 553 (the APA pro-
vision concerning rulemaking)] refers is subject to judicial
review. Such review . . . may be sought only in the United
States Court of Appeals for the Federal Circuit.” The district
court determined that, given § 502’s grant of exclusive juris-
diction to the Federal Circuit, “any challenge by [Veterans] to
VA regulations is not reviewable in this Court.” It found that
provision relevant because, in its view, granting Veterans the
relief they seek “would invariably implicate VA regulations.”
Consequently, it held that “any such challenge is reviewable
only in the Federal Circuit” under § 502.
By its plain text, however, § 502 concerns only “judicial
review” of “action[s] of the Secretary” as defined by the
APA. We are thus presented with Norton’s complement: for
the same reason that the delays Veterans challenge are not
“action[s] of the Secretary” that are reviewable under the
APA, see supra at 6333-37, they are not actions that may be
6354 VETERANS FOR COMMON SENSE v. SHINSEKI
challenged in the Federal Circuit only. Section 502 is clear in
its purpose of directing APA-based challenges to the VA’s
rules and regulations to a single federal court, in derogation
of the APA’s general grant of judicial review in all courts. So
we cannot read its jurisdiction-stripping provision any more
broadly than the narrow class of actions that may actually be
challenged under the APA after Norton.
In addition to § 502’s plain text, our precedent dictates this
result. In Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005),
we held that § 502 bars review outside the Federal Circuit of
“direct challenges to VA rules and regulations” only. Id. at
821 (emphasis added). And in Nehmer v. Department of Vet-
erans Affairs, 494 F.3d 846 (9th Cir. 2007), we determined
that § 502 concerns only suits that “directly challenge either
the merits of the VA’s regulation or the VA’s rulemaking
authority.” Id. at 857-858 (emphasis added). Veterans chal-
lenge neither, but only the VA’s failure to discharge its duty
to veterans in a short enough time to avoid depriving them of
their property interest without due process.
Finally, we find that the district court’s concern that “an
order expediting claims adjudications . . . would force the VA
to alter or repeal some of [its] regulations,” and thus would
violate § 502, was entirely misplaced. As just explained,
§ 502 limits judicial review of discrete agency actions, not
claims of the type asserted here. Veterans’s only surviving
claim with regard to benefits is a facial constitutional chal-
lenge to the VA’s actual conduct, not its codified rules, so
§ 502 is not implicated at all. See Nehmer, 494 F.3d at
858-859 (where plaintiffs “challenge[d] the actions of the VA
in failing to comply with the terms of” a court order, § 502
did not bar review “irrespective of the existence of the VA
regulations” that were adopted in response to the order,
because the claim was not a “facial challenge to VA regula-
tions”). While the VA may choose to modify its regulations
to comply with a remedial order, that future remedy would
not convert Veterans’s suit into an action for judicial review
VETERANS FOR COMMON SENSE v. SHINSEKI 6355
of an agency action subject to § 502. Thus, § 502 does not
affect our ability to review Veterans’s constitutional claims.
b. Section 511. The district court understood § 511 to pre-
clude “review of individual benefits decisions,” but not “fa-
cial constitutional challenges to the VA benefits system.”
Nonetheless, the court determined that § 511 barred review,
because “the determination of whether the delay is unreason-
able may depend on the facts of each particular claim,” which
individually may not be reviewed in district court.
Section 511 blocks review of “decision[s] of the Secretary”
as to any “questions of law and fact necessary to a decision
by the Secretary under a law that affects the provision of ben-
efits.” 38 U.S.C. § 511(a) (emphasis added). Under the stat-
ute’s plain text, there are three problems with the district
court’s analysis.
First, the conduct Veterans challenge is not a “decision”
within the meaning of § 511. While the term “decision” is not
expressly defined in the statute, we understand it in the con-
text of the statute to mean individual benefits adjudications —
the type of individualized decisions Congress sought to keep
out of the district courts. See H.R. Rep. No. 100-963, 1988
U.S.C.C.A.N. 5782, 5803-5804. Section 1156, for example,
discusses “ratings decision[s]” by the Secretary that determine
the degree of disability of a temporarily disabled veteran. 38
U.S.C. § 1156(b)(1)(B). Section 3107 concerns vocational
rehabilitation benefits for veterans, and provides that “[t]he
Secretary shall review [a veteran’s] statement [of disagree-
ment with his rehabilitation plan] and render a decision on
such review . . . .” 38 U.S.C. § 3107(c)(3). Later sections that
refer to § 511 shed further light on the meaning of “decisions”
as “individual determinations.” Section 5104, for example, is
titled “Decisions and notices of decisions,” and explains that
the Secretary must give a claimant notice “of a decision by
the Secretary under § 511 of this title affecting the provision
of benefits to a claimant.” 38 U.S.C. § 5104(a) (emphasis
6356 VETERANS FOR COMMON SENSE v. SHINSEKI
added). And § 7104, which outlines the jurisdiction of the
Board of Veterans’ Appeals, provides, “All questions in a
matter which under section 511(a) of this title is subject to
decision by the Secretary shall be subject to one review on
appeal to the Secretary. Final decisions on such appeals shall
be made by the Board [of Veterans’ Appeals].” 38 U.S.C.
§ 7104. Veterans do not challenge a “decision by the Secre-
tary” here. Instead, they challenge systemic delays in the ben-
efits adjudication process that deprive them of the aid to
which they are entitled.
Second, even if the term “decision” did apply, § 511 pre-
cludes judicial review only of “decision[s]” actually made by
the Secretary. As with Veterans’s constitutional challenge to
the delays in the delivery of mental health care, whatever
“questions of law” the challenge may require us to answer are
not questions the VA has already answered. Nor has the VA
made a final decision in Veterans’s members’ appeals; that
their appeals languish undecided is the very basis for their
claim.34 We thus agree with the Federal Circuit’s interpreta-
tion of this provision: “Section 511(a) does not apply to every
challenge to an action by the VA. As we have held, it only
applies where there has been a ‘decision by the Secretary.’ In
the context of the history of this provision, the statute plainly
contemplates a formal ‘decision’ by the Secretary or his dele-
gate.” Bates v. Nicholson, 398 F.3d 1355, 1365 (Fed. Cir.
2005) (citation omitted). Veterans do not challenge the VA’s
initial ratings decision in their members’ cases here, just the
VA’s systematic failure to timely render decisions on appeal.
Finally, unlike § 502, § 511 does not grant exclusive juris-
diction to any agency or court over a class of legal claims,
except challenges to “decision[s]” within the meaning of
§ 511 that have actually been made by the Secretary. Nothing
34
The VA’s argument (Gov’t Br. 41 n.10) that “there is no question that
the VA is actually deciding benefits claims” is thus misplaced; § 511 is
concerned only with extant, not potential, decisions.
VETERANS FOR COMMON SENSE v. SHINSEKI 6357
in § 511 prevents claims that could be (but have not yet been)
adjudicated by the Secretary, and then reviewed by the Court
of Veterans Claims and the Federal Circuit, from being raised
in another court of competent jurisdiction instead. Our view
in this regard accords with that of the D.C. Circuit:
Section 511(a) does not give the VA exclusive juris-
diction to construe laws affecting the provision of
veterans benefits or to consider all issues that might
somehow touch upon whether someone receives vet-
erans benefits. Rather, it simply gives the VA
authority to consider such questions when making a
decision about benefits, and . . . prevents district
courts from “review[ing]” the Secretary’s decision
once made.
Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006)
(emphasis added). Thus in Broudy, the plaintiffs’ claim that
VA officials had obstructed their access to benefits proceed-
ings by withholding or covering up relevant information was
not barred by § 511 because “the Secretary ha[d] never
decided th[o]se questions.” Id. at 114.
The Federal Circuit agrees as well. In Hanlin v. United
States, 214 F.3d 1319 (Fed. Cir. 2000), that court explained:
We do not read [§ 511] to require the Secretary, and
only the Secretary, to make all decisions related to
laws affecting the provision of benefits. Rather, once
the Secretary has been asked to make a decision in
a particular case (e.g., through the filing of a claim
with the VA), 38 U.S.C. § 511(a) imposes a duty on
the Secretary to decide all questions of fact and law
necessary to a decision in that case.”
Id. at 1321. Consequently, the plaintiff in that case, an attor-
ney for a veteran to whom the VA was supposed to send a
portion of his client’s benefit award as a fee, was permitted
6358 VETERANS FOR COMMON SENSE v. SHINSEKI
to sue the VA in the Court of Federal Claims, notwithstanding
the fact that his “claim arises under [the attorney’s fees provi-
sion of title 38], which is ‘a law that affects the provision of
benefits’ within the meaning of” § 511. Id. at 1321.
We recognize, however, that the Sixth Circuit has con-
strued § 511 more broadly than have the D.C. Circuit and
Federal Circuit. In Beamon v. Brown, 125 F.3d 965 (6th Cir.
1997), the court considered a putative class action brought by
veterans to challenge delays in the processing of veterans’
benefits. The court found these claims barred by § 511, rea-
soning:
Such a challenge raises questions of law and fact
regarding the appropriate methods for the adjudica-
tion of veterans’ claims for benefits. Determining the
proper procedures for claim adjudication is a neces-
sary precursor to deciding veterans benefits claims.
Under § 511(a), the VA Secretary shall decide this
type of question.
Id. at 970. We fail to understand how the Sixth Circuit
squared its reasoning with the plain text of the statute, which
makes no mention of “precursors” or “procedures,” but only
decisions. Its conclusion is all the more odd in light of
§ 511(b), which excepts from § 511(a) challenges to the VA’s
rules and regulations. Even if the term “decision” did encom-
pass the Secretary’s “[d]etermin[ation] [of] the proper proce-
dures for claim adjudication,” that determination would
typically be made by rule and thus exempt from § 511(a)’s
bar to review.
Not only do we find more persuasive the positions of the
D.C. Circuit and Federal Circuits, but we would be prohibited
from adopting the Sixth Circuit’s view even if we were
inclined to do so because of the particular nature of this case.
The Sixth Circuit relied heavily in its analysis on the avail-
ability to the plaintiffs of an alternate forum for their constitu-
VETERANS FOR COMMON SENSE v. SHINSEKI 6359
tional claims in the Veterans Court. Beamon, 125 F.3d at
971-974. But, as the district court recognized, the Veterans
Court would lack jurisdiction over the type of claims raised
by the plaintiffs here, even if they were raised by Veterans’
members individually. The Veterans Court has acknowledged
that “[n]owhere has Congress given this Court either the
authority or the responsibility to supervise or oversee the
ongoing adjudication process which results in a BVA deci-
sion.” Clearly v. Brown, 8 Vet. App. 305, 308 (1995) (empha-
sis added); see also Dacoran v. Brown, 4 Vet. App. 115(1993) (noting that constitutional challenges could be “pre-
sented to this Court only in the context of a proper and timely
appeal taken from such decision made by the VA Secretary
through the BVA”) (emphasis added).
Moreover, organizations such as Veterans could not pre-
sent claims to the Veterans Court, whose jurisdiction is lim-
ited to appeals from the BVA. If we were to adopt the Sixth
Circuit’s broad reading of § 511, then the plaintiff organiza-
tions would be deprived of any forum in which to raise their
claims.35 As the Beamon court itself noted, the possibility of
35
The plaintiff organizations are, of course, separate entities from their
members. We fail to understand how the dissent can suggest that these
independent corporate persons litigating in their own names, although bor-
rowing their members’ standing, are no different from a group of individ-
ual veterans litigating as a plaintiff class. See Dissenting op. at 6381-82.
Indeed, the Supreme Court years ago rejected the argument that “[b]oth
associational standing and [class actions] are ‘designed to serve precisely
the same purpose.’ ” United Auto. Workers v. Brock, 477 U.S. 274, 288
(1986). The Court explained,
While a class action creates an ad hoc union of injured plaintiffs
who may be linked only by their common claims, an association
suing to vindicate the interests of its members can draw upon a
pre-existing reservoir of expertise and capital. Besides financial
resources, organizations often have specialized expertise and
research resources relating to the subject matter of the lawsuit
that individual plaintiffs lack. These resources can assist both
courts and plaintiffs. As one court observed of an association’s
6360 VETERANS FOR COMMON SENSE v. SHINSEKI
interpreting the predecessor to § 511 “as a complete bar to the
judicial review of all challenges to such decisions” has led the
Supreme Court to decide that the provision did not preclude
district courts from hearing constitutional challenges relating
to veterans benefits, for fear “of the constitutional danger of
precluding judicial review of constitutional claims.” Id. at
971-972 (citing Johnson v. Robison, 415 U.S. 361 (1974)).
For that same reason, we could not construe § 511 so broadly
here given the specific nature of this case.36
The purpose of the VJRA was to keep thousands of suits
role in pending litigation: “[T]he interest and expertise of this
plaintiff, when exerted on behalf of its directly affected members,
assure ‘that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumina-
tion of difficult . . . questions.’ ”
Id. at 289 (first internal quotation marks and citations omitted). That is, an
organization is much more than a mere “tool, like class actions, for vindi-
cating individual members’ interests.” Dissenting op. at 6382.
36
A recent case before the D.C. Circuit considered a challenge similar
to Veterans’s claim here as to the benefits adjudication system. See Viet-
nam Veterans of Am. v. Shinseki, 599 F.3d 654 (D.C. Cir. 2010). That case
was decided solely on standing grounds, as noted supra at 6321-22 n.16.
See Vietnam Veterans, 559 F.3d at 661-662. In the six pages of dicta that
preceded that holding, however, the court discussed Beamon favorably
before stating, “[o]ur discussion of this issue is tentative.” Id. at 659-661.
We give no weight to the tentative dictum of other courts. In any event,
Vietnam Veterans considered Beamon not for its holding as to § 511, but
rather for its finding that the adequate alternative remedy in the Veterans
Court barred review of the plaintiffs’ APA-based challenge, because APA
§ 704 precludes review if an alternate remedy exists elsewhere. Id. at 659
(citing Beamon, 125 F.3d at 967-970). Vietnam Veterans went on to muse,
“we think it virtually inevitable that it would be held that the [Veterans
Court] has exclusive jurisdiction to hear due process claims” too, because
those claims were “essentially identical” to the plaintiffs’ “unreasonable
delay claim” under the APA. Id. at 660 & n.7. We are aware of no princi-
ple that limitations on a statutory cause of action may be transferred
wholesale to a constitutional claim simply because it arises from the same
underlying events.
VETERANS FOR COMMON SENSE v. SHINSEKI 6361
concerning individual benefits determinations from crowding
the dockets of the federal courts, on top of the social security
cases and immigration petitions for review that already keep
them busy reviewing agency actions. Although the VA and
the dissent struggle mightily to ignore the nature of this suit,
it is plain that a structural constitutional challenge is beyond
the jurisdiction of the Veterans Court to hear and, due in part
to the Secretary’s prolonged indecision on appeals, outside
the preclusive sweep of § 511.
2
Turning, at last, to the merits of Veterans’s constitutional
claim, we hold that the district court rightly acknowledged
that “many veterans have a protected property interest [under
the Due Process Clause] as applicants for and recipients of
SCDDC benefits.” Accord Cushman v. Shinseki, 576 F.3d
1290, 1298 (Fed. Cir. 2009) (holding that veterans’ benefits
are a protected property interest under the Fifth Amendment,
because they are statutorily mandated and nondiscretionary in
nature).
Confronted with the stark and sobering evidence of inexpli-
cable delays in the benefits adjudication process, the district
court stated that it could not conclude that the due process
rights of veterans were violated by the absence of procedures
designed to reduce delays in claim appeals, “in light of many
of the factors creating these delays.” To reach this conclusion,
the district court relied primarily on the Seventh Circuit’s
decision in Wright v. Califano, 587 F.2d 345 (7th Cir. 1978),
which found that 180-day delays in the adjudication of social
security benefits did not constitute a due process violation
under Mathews v. Eldridge, given the Social Security Admin-
istration’s “severe resource constraints.” Id. at 354-356. The
court found Wright’s “reasoning applicable to the present
case.”
In so ruling, however, the district court failed to properly
analyze Veterans’s due process claim by conducting a
6362 VETERANS FOR COMMON SENSE v. SHINSEKI
Mathews analysis of its own based on the facts of this case.
“ ‘[D]ue process,’ unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances.” Cafeteria & Restaurant Workers v. McElroy,
367 U.S. 886, 895 (1961). Instead, “due process is flexible
and calls for such procedural protections as the particular situ-
ation demands.” Morrissey v. Brewer, 408 U.S. 471, 481
(1972). Wright itself acknowledged that there could come a
time “when due process is no longer due process because past
due”; it just found that, on the facts of that case, that time had
not yet been reached. Wright, 587 F.2d at 354. So we must
undertake that analysis to see if process is “past due” here by
“examin[ing] the importance of the private interest and the
harm to this interest occasioned by delay; the justification
offered by the Government for delay and its relation to the
underlying governmental interest; and the likelihood that the
interim decision may have been mistaken.” FDIC v. Mallen,
486 U.S. 230, 242 (1988).
[13] First, we find that veterans’ property interest in their
service-connected death and disability compensation could
not be more vital — many recipients of such benefits are
totally or primarily dependent upon that compensation for
their financial support and the support of their families. A vet-
eran receives no monies from the VA until his claim has been
approved, which means that during the initial period of claim
assessment and during the pendency of any appeal he and his
family suffer tremendous privation. To pursue a claim to com-
pletion, for example, may take in excess of 4.4 years, even
excluding “the time between an . . . initial decision [at the
Regional Office level] and a veteran’s NOD filing, which may
be as long as one year”). During the pendency of such
appeals, the record before us shows that many veterans perish,
after living in want. The district court’s memorandum of deci-
sion states, for example, that “[b]etween October 1, 2007, and
March 31, 2008, alone, at least 1,467 veterans died during the
pendency of their appeals,” thus extinguishing their appeals.
VETERANS FOR COMMON SENSE v. SHINSEKI 6363
The private interest is thus strong — as is, indeed, the public
interest, given the nature of the claimants.
Second, the VA attributes the delays in claims appeals, in
part, to its placing a priority on adjudicating initial claims. We
fail to understand, however, why prioritizing initial claim
adjudications must come at the expense of timely appeals pro-
cessing. Much of the delay appears to arise from gross ineffi-
ciency, not resource constraints. We are particularly doubtful,
for example, that any government interest could justify the
573-day average delay for a Regional Officer to certify an
appeal to the BVA after receiving a veteran’s form requesting
an appeal — a step that we understand to be a ministerial task.
We are as confounded as the Chairman of the BVA, who at
trial “was unable to explain” the overall “lengthy delay in the
resolution of appeals.” If resource constraints are an issue, the
VA has not asserted as much, and the record does not suggest
that staffing or funding shortages are responsible for the
delays in the adjudication process. To the contrary, the district
court found that the VBA is rapidly increasing its staff.
[14] Finally, we might find the VA’s argument more com-
pelling if it were not clear that prioritizing initial determina-
tions over appeals has not worked, given the high reversal rate
of those determinations. Only forty percent of initial decisions
appealed are affirmed.37 Between 19 and 44 percent of
37
See also Transcript of Oral Arg., Astrue v. Ratliff, No. 08-1322 (U.S.
Feb. 22, 2010):
[Assistant to the Solicitor General Anthony] YANG: [The
reversal rate in the VA context is] in the order of either 50 or
maybe slightly more than 50 percent. It might be 60. But the
number is substantial that you get a reversal . . . .
CHIEF JUSTICE ROBERTS: Well, that’s really startling, isn’t
it? In litigating with veterans, the government more often than
not takes a position that is substantially unjustified?
MR. YANG: It is an unfortunate number, Your Honor. And it
is — it’s accurate.
6364 VETERANS FOR COMMON SENSE v. SHINSEKI
remands by the BVA, when appellate decisions are eventually
reached, are “avoidable,” meaning “an error [was] made by
the R[egional] O[ffice] before it certifie[d] the appeal to the
B[oard].” It is unlikely that initial adjudications can approach
perfect accuracy even if priority is given to them. Under those
circumstances, we do not find that the VA’s interest out-
weighs veterans’ in ensuring that those initial determinations
that are incorrect get corrected quickly, even if the VA did
actually have to make such a trade-off. Given that 60 percent
of all appeals result in grants or remands, the risk of pro-
longed erroneous deprivation during these delays is high. We
therefore find that the delays in the VA’s claims appeals pro-
cess amount to deprivation of property without due process.
We find support for our conclusion in the reasoning of
other courts facing similar balancing determinations. Some
courts, like the Seventh Circuit in Wright, have found no due
process violation when faced with relatively short delays in
the provision of benefits and substantial government interests.
In Barrett v. Roberts, 551 F.2d 662 (5th Cir. 1977), for exam-
ple, the Fifth Circuit found that 8- to 20-day delays in the
receipt of a single month’s welfare check did not deny due
process, because those delays occurred during a semi-annual
review for program eligibility, which was necessary to the
government’s interest in preventing undeserving recipients
from claiming entitlements. In Littlefield v. Heckler, 824 F.2d
242 (3d Cir. 1987), the Third Circuit determined that a nine-
month delay between the issuance of an ALJ’s “recommended
decision” in a social security benefits case and a final decision
by the Social Security Administration’s Appeals Council was
constitutional, given the volume of cases before the Appeals
Council. Id. at 246-247. And the Second Circuit found that a
19-month delay in Medicare reimbursements of claims of
under $500, caused by the government’s requirement that
claim disputes be heard by a private hearing officer prior to
being adjudicated by an ALJ, was justified because (1) the
private interest was low where the amount of benefits was
small and not related to financial need, (2) the lack of infor-
VETERANS FOR COMMON SENSE v. SHINSEKI 6365
mation about the risk of erroneous deprivation during the
delay, and (3) the government’s substantial interest in resolv-
ing more claims through the informal procedure. Isaacs v.
Bowen, 865 F.2d 468 (2d Cir. 1989).
By contrast, the Third Circuit determined that a three-year
and nine-month delay in evaluating an application for a dis-
abled child’s annuity under the Railroad Retirement Act vio-
lated due process. Kelly v. R.R. Retirement Bd., 625 F.2d 486(3d Cir. 1980). The applicant sought disability benefits to sus-
tain her while she fought severe depression. The court found
it “wholly inexcusable” that “the administrative review pro-
cess of a single disability application extended to nearly four
years.” Id. at 490. It reasoned, “Although there is no magic
length of time after which due process requirements are vio-
lated, we are certain that three years, nine months, is well past
any reasonable time limit, when no valid reason for the delay
is given.” Id. The court rejected the Board’s argument that the
delay was necessary to gather evidence, because it found that
no decision issued until more than one year after all evidence
was gathered. Moreover, it found “the backlog of cases and
limited resources of the Board” to be no excuse, because
“[w]hatever its internal problems, the Board has the power to
implement regulations that would accelerate the agency
review process. Four years is totally out of phase with the
requirements of fairness.” Id. at 491.
And in Kraebel v. New York City Department of Housing
Preservation & Development, 959 F.2d 395 (2d Cir. 1992),
the Second Circuit found a likely due process violation when
the city delayed granting property tax benefits to a landlord
who was entitled to the tax benefits after rehabilitating her
buildings as part of a city program. It took one and a half
years for the city to determine that the landlord was in fact
entitled to the benefit. But, the court reasoned, “even before
the state makes a definitive decision as to entitlement, the
road to that determination must be paved by due process.” Id.
at 405. The court remanded for the district court to consider
6366 VETERANS FOR COMMON SENSE v. SHINSEKI
in the first instance whether the delay was justified, weighing
the landlord’s interest in prompt payment for her voluntary
participation in a socially beneficial program against the diffi-
culty faced by the city in making eligibility determinations.
Id. at 406.
We are confident that the present case fits comfortably
within the latter category of cases rather than the former. This
is not a case involving short but justified delays of critical
benefits, cf. Barrett, moderate delays of important benefits
caused by a system overload, cf. Littlefield, or long delays of
minor benefits due to government interest in efficiency, cf.
Isaacs. Instead, like Kelly, this case involves critical benefits
to sustain those incapacitated by mental disability, delayed for
an excessive period of time without satisfactory explanation.
[15] Again, we remand to the district court with the
instruction that it conduct evidentiary hearings in order to
determine what procedures would remedy the existing due
process violations in the VBA claims adjudication process.
The hearings shall explore what procedural protections are
most appropriate to permit the appeals of veterans to be expe-
dited in the most efficient manner, with a particular emphasis
on the procedural protections necessary for veterans suffering
the most financial hardship during the adjudication of their
claims. The district court may consider the need for setting
maximum time periods for determinations at various stages of
the claims adjudication process and/or the need for a proce-
dure to expedite claims where emergency circumstances are
shown to exist. As stated above, the district court may seek
the assistance of a Magistrate Judge or Special Master in cre-
ating and implementing a remedial plan, and the court should
first encourage the parties to meet and confer to propose a
remedial plan. In the end, the district court shall either
approve an agreement reached by the parties or enter an
appropriate order instructing the VBA to provide Veterans
with the procedural safeguards to which they are entitled.
VETERANS FOR COMMON SENSE v. SHINSEKI 6367
IV
Veterans also assert that there is a lack of adequate proce-
dures when veterans initially file their claims for service-
connected death and disability benefits at their local VBA
Regional Office (“RO”).
[16] Veterans file an initial claim for service-connected
death and disability compensation with their RO. Veterans
claim that the VA violates veterans’ due process rights by
failing to afford adequate procedural protections to veterans
during the initial submission of their claims and the adjudica-
tion of those claims at the RO level, because there is no right
to a pre-decisional hearing and discovery and veterans are
prohibited from retaining paid counsel to assist them in the
submission of their initial claim.38 Veterans do not challenge
the time period required for the initial adjudication of claims
at the RO level, but rather they challenge solely the proce-
dures in place (or lack thereof) to facilitate veterans’ submis-
sion of their claims. We affirm the district court on this claim
because the non-adversarial procedures at the VA level are
sufficient to satisfy the dictates of due process.
In reaching its conclusion that the RO level procedures do
not violate veterans’ due process rights, the district court con-
ducted an analysis of the Mathews factors. While the first fac-
tor weighs in favor of relief (“veterans and their families have
a compelling interest in receiving disability benefits and . . .
the consequences of erroneous deprivation can be devastat-
ing”), the district court concluded that the second and third
factors do not support relief. In concluding that the risk of
erroneous deprivation at the RO level is relatively low, the
district court noted that a small percentage of cases are
affected, given the small percentage of RO determinations
38
After the veteran files a Notice of Disagreement, thereby appealing
from the RO level, the veteran is exempt from the prohibition on retaining
paid counsel. 38 U.S.C. § 3904(c)(1).
6368 VETERANS FOR COMMON SENSE v. SHINSEKI
that are appealed.39 In addition, the district court noted that the
third factor weighed against relief where the VA would face
“significant” fiscal and administrative burdens if required to
implement Veterans’s proposed additional procedural require-
ments at the RO level.
We note that the government also has an interest in main-
taining the non-adversarial nature of RO level proceedings.
With regard to the prohibition on retaining paid counsel, the
Supreme Court has said:
The Government interest, which has been articulated
in congressional debates since the fee limitation was
first enacted in 1862 during the Civil War, has been
this: that the system for administering benefits
should be managed in a sufficiently informal way
that there should be no need for the employment of
an attorney to obtain benefits to which a claimant
was entitled, so that the claimant would receive the
entirety of the award without having to divide it with
a lawyer.
Walters, 473 U.S. at 322. The Court noted that allowing the
payment of attorneys “would seriously frustrate the oft-
repeated congressional purpose for enacting [the fee limita-
tion].” Id. at 323. The Walters Court characterized the govern-
ment’s interest as warranting “great weight,” and concluded
that “[i]t would take an extraordinarily strong showing of
probability of error under the present system — and the prob-
ability that the presence of attorneys would sharply diminish
that possibility — to warrant a holding that the fee limitation
denies claimants due process of law.” Id. at 326. The plain-
tiffs in Walters failed to make this strong showing, and the
court therefore held that there was no due process violation.
Id. at 334. We are bound by that holding. If the Supreme
39
We accord little weight to this fact as a measure of actual accuracy,
in light of the uninviting appeals process.
VETERANS FOR COMMON SENSE v. SHINSEKI 6369
Court’s view of the benefits and consequences of allowing
veterans to have legal representation is to be changed or mod-
ified, it will have to be done by the Supreme Court itself, and
not by a circuit court.
Although Veterans challenge a wider array of procedural
restrictions than those at issue in Walters, the Supreme
Court’s analysis is directly applicable to the case before us.
Underlying all the procedural restrictions cited by Veterans is
what the Court has already held to be the government’s inter-
est in the creation and preservation of a non-adversarial sys-
tem. Instead of allowing for paid attorneys to represent
claimants and formal discovery, Congress imposed on the VA
a duty to assist claimants in substantiating their claims for
benefits. See 38 U.S.C. § 5103A. Veterans have failed to
make a strong showing that the current system carries with it
a high probability of error or that a more formal process
would decrease the probability of error. Accordingly, we
affirm the district court’s ruling.
V
Finally, Veterans contend that the district court erred in
refusing to compel discovery of all suicide incident briefs and
refusing to compel a response to an interrogatory seeking the
average number of days PTSD claims take at the RO level.
We review for abuse of discretion the district court’s dis-
covery rulings and management of the trial. “[B]road discre-
tion is vested in the trial court to permit or deny discovery,
and its decision to deny discovery will not be disturbed except
upon the clearest showing that denial of discovery results in
actual and substantial prejudice to the complaining litigant.”
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (quoting
Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)). To
succeed on this challenge, Veterans must show “actual and
substantial prejudice” resulted from the discovery rulings.
Hallett, 296 F.3d at 751.
6370 VETERANS FOR COMMON SENSE v. SHINSEKI
A. Suicide Incident Briefs
At a status conference, Veterans sought to compel discov-
ery of suicide incident briefs — reports prepared by the VA
following the suicide or attempted suicide of a veteran under
VA care. The VA represented that there are 15,000 suicide
incident briefs that would be subject to extensive redaction
and argued that the redacted suicide incident briefs would be
of little probative value. The district court asked Veterans
what they would do with that information. Veterans
responded: “I think it would potentially subject to analysis . . .
to try to amalgamate the data across the system to show in
practice how the procedures and policies that are in place with
respect to mental health care, in fact, the small—.” The dis-
trict court interjected “I don’t think I have any authority to
talk about their policies,” and thereafter denied Veterans’s
motion to compel production.
Veterans claim that full discovery of all suicide incident
briefs would have allowed them to establish links between the
VA’s failure to comply with its policies and procedures and
veterans’ suicides. Veterans, however, do not argue how they
were prejudiced by the discovery ruling in the context of their
specific APA and due process claims. There is no contention
that the suicide incident briefs would have allowed Veterans
to fulfill the APA’s statutory requirements for judicial review
set forth at 5 U.S.C. § 706(1) and delineated in Norton. It is
possible that access to the suicide incident briefs might have
provided Veterans with additional useful material in support
of their due process claim concerning veterans’ inability to
appeal administrative scheduling decisions that delay neces-
sary mental health care. However, such material is not neces-
sary for Veterans to make out a valid claim — indeed, as we
hold above, their eligibility for relief under Mathews has
already been established by the district court’s factual find-
ings. In light of our holding reversing and remanding this case
to the district court for the entry of an appropriate order reme-
dying the due process violation that Veterans have suffered
VETERANS FOR COMMON SENSE v. SHINSEKI 6371
because of the VHA’s delay in the provision of mental health
care, we conclude that it is unnecessary to address this discov-
ery issue.
B. Average Time for Processing PTSD Claims at the RO
Level
Veterans also sought to compel a response to their interrog-
atory requesting the average amount of time it takes to pro-
cess PTSD compensation claims at the Regional Office level.
During the trial, Veterans raised the issue with the district
court. The VA represented that Michael Walcoff, then Deputy
Under Secretary for Benefits in the Department of Veterans
Affairs,40 would testify as to what data the VA has and why
the VA cannot produce the data sought by Veterans. After
Walcoff testified, Veterans filed a motion to compel by letter
contending that “Walcoff’s testimony, although consistent
with the explanation provided by counsel for Defendants,
does not support the ‘not available’ interrogatory answer pro-
vided by Defendants.” The following day, April 29, 2008, the
court denied Veterans’s motion to compel.
Veterans contend that the district court abused its discretion
in refusing to compel an answer to that interrogatory. We fail
to see how this specific information would bolster Veterans’s
APA or due process claims. Veterans’s statutory claims are
foreclosed for the reasons we discuss above. Veterans’s due
process arguments concerning delays in claims adjudication
focus on the time it takes to appeal benefits determinations.
At the RO level, Veterans claim only that the failure to pro-
vide more formal procedures for adjudicating benefits claims
and the VA’s use of a procedure to reduce benefits awards
system violates due process. Veterans make no argument as
to how further information on delays in processing PTSD
claims at the RO level would support their due process claims
40
Walcoff was appointed Acting Under Secretary for Benefits in the
Department of Veterans Affairs on Jan. 4, 2010.
6372 VETERANS FOR COMMON SENSE v. SHINSEKI
regarding RO-level procedures. In the absence of any show-
ing of how this additional information would have strength-
ened Veterans claims, we affirm the district court’s ruling on
this issue.
CONCLUSION
The United States Constitution confers upon veterans and
their surviving relatives a right to the effective provision of
mental health care and to the just and timely adjudication of
their claims for health care and service-connected death and
disability benefits. Although the terms of the Administrative
Procedure Act preclude Veterans from obtaining relief in our
court for their statutory claims, their entitlements to the provi-
sion of health care and to veterans’ benefits are property inter-
ests protected by the Due Process Clause of the Fifth
Amendment. The deprivation of those property interests by
delaying their provision, without justification and without any
procedure to expedite, violates veterans’ constitutional rights.
Because neither Congress nor the Executive has corrected the
behavior that yields these constitutional violations, the courts
must provide the plaintiffs with a remedy. We therefore
remand this case to the district court with the instruction that,
unless the parties resolve this dispute first, it enter an order
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.
VETERANS FOR COMMON SENSE v. SHINSEKI 6373
Chief Judge KOZINSKI, dissenting in large part:*
The majority hijacks the Department of Veterans Affairs’s
(VA’s) mental health treatment and disability compensation
programs and installs a district judge as reluctant
commandant-in-chief. That judge must now decide “what pro-
cedural protections are necessary” to satisfy the majority’s
due process concerns, “enter an appropriate order instructing”
the VA to change its procedures and then monitor the VA,
perhaps indefinitely. Maj. op. at 6350-51, 6366. The majority
tramples over the strict jurisdictional limits Congress has
imposed on our ability to review the VA’s decisions on veter-
ans’ benefits. See 38 U.S.C. §§ 502, 511. Not content to
ignore Congress, the majority also brushes aside the Supreme
Court’s admonition that we must accommodate the strong
government interest in making the VA’s proceedings “as
informal and nonadversarial as possible.” Walters v. Nat’l
Ass’n of Radiation Survivors, 473 U.S. 305, 323-24 (1985).
This is a recipe for endless rounds of litigation over the mean-
ing of “necessary” and “appropriate,” and the procedures the
majority orders the district court to consider—imposing dead-
lines on the VA and requiring another layer of appeals—are
the antithesis of an “informal and nonadversarial” system.
Today’s decision will undoubtedly distract the VA from its
ultimate mission: taking care of veterans who risked their
lives for our nation. Because I cannot join in today’s Article
III putsch, I dissent.
I
Much as the VA’s failure to meet the needs of veterans
*I join those portions of the opinion denying plaintiffs’ Administrative
Procedure Act claims, rejecting their challenge to the procedures for filing
a claim at a Regional Office and affirming the district court’s refusal to
compel a response to one of their interrogatories. For the reasons articu-
lated by the district court, I would affirm its refusal to compel production
of all suicide incident briefs.
6374 VETERANS FOR COMMON SENSE v. SHINSEKI
with PTSD might shock and outrage us, we may not step in
and boss it around. Congress erected a big “keep out” sign for
us in the Veterans’ Judicial Review Act (VJRA), which pro-
vides that:
The Secretary [of Veterans Affairs] shall decide all
questions of law and fact necessary to a decision by
the Secretary under a law that affects the provision
of benefits by the Secretary to veterans . . . . [T]he
decision of the Secretary as to any such question
shall be final and conclusive and may not be
reviewed by any other official or by any court . . . .
38 U.S.C. § 511(a) (emphasis added). The VJRA precludes us
from reviewing all decisions “by the Secretary or his dele-
gate,” Bates v. Nicholson, 398 F.3d 1355, 1365 (Fed. Cir.
2005), on “all questions of law and fact necessary to a deci-
sion” on veterans benefits, 38 U.S.C. § 511(a) (emphasis
added). The statute also covers claims where review of such
decisions is a “necessary predicate.” Price v. United States,
228 F.3d 420, 422 (D.C. Cir. 2000) (per curiam). Thus, we
lack jurisdiction if adjudicating a claim “would require the
district court to determine first whether the VA acted properly
in handling [the veteran’s] request.” Id.; accord Thomas v.
Principi, 394 F.3d 970, 974 (D.C. Cir. 2005); see also Broudy
v. Mather, 460 F.3d 106, 115 (D.C. Cir. 2006).
The exclusive avenue for review of the VA’s decisions is
to file an appeal with the Board of Veterans’ Appeals (BVA),
a tribunal within the VA. 38 U.S.C. § 7104(a); see Price, 228
F.3d at 421 (VJRA “precludes judicial review in Article III
courts of VA decisions affecting the provision of veterans’
benefits”). From the BVA, a veteran may appeal to the Court
of Appeals for Veterans Claims (Veterans Court), an indepen-
dent Article I court, 38 U.S.C. § 7252(a), and then to the Fed-
eral Circuit, populated by Article III judges just like us, id.§ 7292(c).
VETERANS FOR COMMON SENSE v. SHINSEKI 6375
Applying the VJRA here should be short work. Plaintiffs
claim that the VA’s extensive delays in providing mental
health care and disability compensation constitute a depriva-
tion of statutory entitlements under the Fifth Amendment’s
Due Process Clause. See 38 U.S.C. § 1710(a)(1) (the VA must
“furnish hospital care and medical services” that it “deter-
mines to be needed” to “any veteran for a service-connected
disability”); id. § 1705(b)(1) (the VA must “ensure that the
provision of care to [veterans] is timely and acceptable in
quality”); id. § 1110 (veterans are entitled to compensation for
“disability resulting from personal injury suffered or disease
contracted in line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in line of duty”). Mental
health care and disability compensation are clearly “benefits.”
See 38 C.F.R. § 20.3(e) (defining “benefit” to include “any
payment, service . . . or status, entitlement to which is deter-
mined under laws administered by the Department of Veter-
ans Affairs pertaining to veterans”). Therefore, we lack
jurisdiction to review the VA’s decisions as to them. See
Thomas, 394 F.3d at 975 (claims that VA “failed to render the
appropriate medical care services” and denied “known needed
and necessary medical care treatment” are “barred by section
511”); Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654,
656 (D.C. Cir. 2010) (recognizing that decisions as to disabil-
ity compensation fall under the VJRA); Littlejohn v. United
States, 321 F.3d 915, 921 (9th Cir. 2003) (same). But we can’t
decide plaintiffs’ due process claims without “determin[ing]
first” whether the VA “acted properly in handing” requests
for benefits; thus, we lack jurisdiction over these claims. See
Price, 228 F.3d at 422; Thomas, 394 F.3d at 974; Broudy, 460
F.3d at 115. Because we lack jurisdiction, we must dismiss.
Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15 (1868).
The majority appears to believe that Congress didn’t mean
what it said when it enacted the VJRA, and roves far and wide
for reasons to circumvent its limitations on our jurisdiction.
See maj. op. at 6337-40, 6341-61. This is nothing less than a
rebellion against Congress’s consistent policy of limiting judi-
6376 VETERANS FOR COMMON SENSE v. SHINSEKI
cial review of the VA’s affairs. See H.R. Rep. No. 100-963,
at 9 (1988) (“[O]ver the years, the Congress has declared its
views that there should be no judicial remedy with respect to
claims for veterans benefits, and this policy was honored for
nearly 170 years.” (emphasis added)).1 The majority eviscer-
ates a statute Congress erected to beat back the last major
judicial offensive against the VA. See id. at 6311; Beamon v.
Brown, 125 F.3d 965, 971-72 (6th Cir. 1997) (discussing his-
tory of the VJRA). As President Reagan might have said,
“Here we go again.”
A. Systemwide claims: Plaintiffs claim that the VA’s fail-
ure to (1) “timely provide medical care to PTSD recipients
and claimants” and to (2) “timely resolve [service-connected
disability] claims for PTSD” deprives “claimants of their
property and liberty without . . . due process.” Complaint ¶¶
254(b), 260. Were an individual veteran to allege that the VA
deprived him of these veterans’ benefits, section 511 would
preclude us from reviewing his case. See p.6375 supra. Seek-
ing to escape section 511’s jurisdiction-stripping command,
plaintiffs disavowed any intention of seeking relief for indi-
vidual veterans:
1
The majority believes that its interference is justified because “the
stakes are so high for so many” and plaintiffs’ claims involve “grave ques-
tions of life and death.” Maj. op. at 6301 & n.3. But Congress has enacted
numerous restrictions on our power to review the VA’s provision of bene-
fits, none of which contain an exception for “grave questions of life and
death.” See Act of Mar. 20, 1933, ch. 3, § 5, 48 Stat. 8, 9; Act of Oct. 17,
1940, ch. 893, § 11, 54 Stat. 1193, 1197; Act of Aug. 12, 1970, Pub. L.
No. 91-376, § 8, 84 Stat. 787, 790; Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 101, 102 Stat. 4105, 4105-06 (1988) (VJRA); see also
World War Veterans’ Act, 1924, ch. 320, § 5, 43 Stat. 607, 608-09.
There’s no doubt that Congress has the power to divest us of jurisdiction
over such cases. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943).
In any event, Congress didn’t foreclose judicial review. Veterans can
bring their claims to the Veterans Court and from there to the Federal Cir-
cuit, whose judges enjoy Article III independence. The majority dispar-
ages our Federal Circuit colleagues by presuming that they are unable or
unwilling to protect veterans’ fundamental rights.
VETERANS FOR COMMON SENSE v. SHINSEKI 6377
The facts herein pertaining to the [veterans and the
organizational plaintiffs] are included for the specific
purpose[ ] of . . . illustrating the Challenged VA
Practices, and not for the purpose of obtaining
review of decisions by the VA or CAVC. Nothing
herein is intended or should be construed as an
attempt to obtain review of any decision relating to
benefits sought by any veteran . . . or to question the
validity of any benefits decisions made by the Secre-
tary of the VA.
Complaint ¶ 39 (emphasis added). Plaintiffs went out of their
way to represent that “constitutional defects with the VA’s
systems, as set forth herein, are . . . divorced from the facts
of any individual claim,” id. ¶ 12, and that the “nature of the
claims alleged herein and of the relief sought does not make
the individual participation of each injured member and/or
constituent indispensable to proper resolution of the lawsuit,”
id. ¶ 38.2
Plaintiffs submitted evidence of average delays to the dis-
trict court. Based on this evidence, the court found that 4.5
percent “of VA facilities . . . reported a wait time of 4-8
weeks” to see patients with “symptoms of moderate severity
for depression” and 5.5 percent reported similar wait times for
PTSD referrals. There were “approximately 84,450 veterans
on VHA waiting lists for mental health services.” The court
also made findings as to the VA’s average delay in processing
a disability claim, concluding that it took “approximately 4.4
years . . . for a veteran to adjudicate a [disability compensa-
tion] claim all the way to a BVA decision.”3 The court didn’t
2
The majority thus misreads the complaint when it suggests that plain-
tiffs “complain of a variety of injuries actually being experienced or likely
to be experienced in the near future by their members,” who “would indi-
vidually have standing.” Maj. op. at 6321-22 n.16.
3
The court made the following findings (with emphasis added and acro-
nyms spelled out): “On average, . . . it was taking 261 days for [a]
6378 VETERANS FOR COMMON SENSE v. SHINSEKI
find that any individual veteran was actually denied or likely
to be denied his statutory entitlement to mental health care or
disability compensation.
The majority concludes that “the conduct [plaintiffs] chal-
lenge is not a ‘decision’ within the meaning of § 511” because
they don’t “challenge the timing of an individual [benefit],”
and instead “challenge systemic delays in the benefits adjudi-
cation process.” Maj. op. at 6339, 6356. And it expressly
relies on the average delays found by the district court: “All
told, over 84,000 veterans are on waiting lists for mental
health care.” Id. at 6346-47. “To pursue a claim to comple-
tion, for example, may take in excess of 4.4 years . . . . [dur-
ing which] many veterans perish, after living in want. . . . We
are particularly doubtful . . . that any government interest
could justify the 573-day average delay for a Regional
Office[ ] to certify an appeal to the BVA . . . .” Id. at 6362-63
(emphasis added).
The majority purports to side with the D.C. Circuit in con-
struing section 511 to permit plaintiffs’ claims, id. at 6357,
but that court in fact heard a case where plaintiffs disavowed
precisely the same individual claims and held that it lacked
jurisdiction, see Vietnam Veterans of Am., 599 F.3d at 661-62.
There, as here, plaintiffs “went out of their way to forswear
any individual relief for the [veterans].” Id. at 662. Their com-
plaint stated:
To the extent any of the facts presented herein apply
to individuals rather than to veterans as a whole, they
are intended for illustrative purposes only. Nothing
Regional Office to mail [a] Statement of the Case to a veteran.” It takes
“573 days, on average, for [a] Regional Office to certify an appeal to the
BVA.” “On average, it takes the BVA 336 days to issue a decision . . . .”
If a veteran requests a hearing, he “will have to wait, on average, 455
days.” The majority cites these averages in its discussion. See maj. op. at
6315.
VETERANS FOR COMMON SENSE v. SHINSEKI 6379
in this complaint is intended as, nor should it be con-
strued as, an attempt to obtain review of an individ-
ual determination by the VA or its appellate system.
Id. at 657-58 (alteration and internal quotation marks omit-
ted). Compare the quoted language from the two complaints:
The only difference is that plaintiffs in our case have more
explicitly disavowed individual relief. The D.C. Circuit plain-
tiffs also submitted affidavits alleging average delays in the
VA’s benefits appeals. Id. at 657; see id. at 662 (“[T]he
asserted illegal action the VA has committed is described as
the average length of time it takes at each stage of the claims
process.”).
The D.C. Circuit persuasively explained that plaintiffs’
“rather apparent effort to avoid the preclusive bite” of section
511 ended up stripping them of standing. Id. at 661. I repro-
duce the court’s discussion below, as the D.C. Circuit has said
all there is to say about plaintiffs’ attempt to circumvent sec-
tion 511.
[T]he average processing time does not cause affi-
ants injury; it is only their processing time that is rel-
evant. If, for example, affiants fell at the quick-
processing end of a bell-shaped curve, a high aver-
age processing time would be irrelevant to them, and
to reverse the analysis, a low average would not
avoid injury if affiants were at the other end of the
curve. In sum, assuming the alleged illegality—that
the average processing time at each stage is too long
—that “illegality” does not cause the affiants injury.
And causation is a necessary element of standing.
If the affiants were suing by themselves—which
is how we must analyze the claim—asserting that the
average time of processing was too long, it would be
apparent that they were presenting a claim not for
themselves but for others, indeed, an unidentified
6380 VETERANS FOR COMMON SENSE v. SHINSEKI
group of others. But one can not have standing in
federal court by asserting an injury to someone else.
It seems the district judge intuited this point by not-
ing the claims were “not monolithic.”
Id. at 662 (citations omitted). Although the quoted paragraphs
focus on delays in processing disability compensation
appeals, their reasoning extends to delays in providing mental
health care. The D.C. Circuit explained that plaintiffs alleging
average, non-individual delays are actually “presenting a
claim not for themselves but for . . . an unidentified group of
others.” Id. Such allegations can’t establish standing. Id. Like
plaintiffs in the D.C. Circuit, plaintiffs here disavowed all
individual injuries to their members—both actual and likely—
and relied on evidence of average delays.4 Thus, like plaintiffs
in the D.C. Circuit, they lack standing to pursue their non-
individualized claims. The majority’s not just dead wrong; it
creates a square circuit split on an issue that requires national
uniformity.
B. Alternative forum: The majority compounds its error by
holding that a “broad reading of § 511” would “deprive[
plaintiffs] of any forum in which to raise their claims” and
thus contravene the Supreme Court’s warning about “the con-
stitutional danger of precluding judicial review of constitu-
tional claims.” Maj. op. at 6359. The majority claims that the
Veterans Court “lack[s] jurisdiction over the type of claims
raised by” plaintiffs because: (1) constitutional challenges
4
It makes no difference that this is a “suit for prospective relief.” Maj.
op. at 6322 n.16. Plaintiffs stated in their complaint that their claims were
“divorced from the facts of any individual claim” before the VA, so they
can’t sue on behalf of veterans now being injured by the VA’s alleged
delays. Nor can they sue on behalf of veterans who have received medical
care or whose claims have already been processed. See Vietnam Veterans
of Am., 599 F.3d at 661 n.11. And they can’t sue on behalf of veterans
who haven’t requested benefits from the VA because any injury there
would be purely “conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted).
VETERANS FOR COMMON SENSE v. SHINSEKI 6381
must be made “in the context of a proper and timely appeal”
from a BVA decision, while plaintiffs have challenged delays
before the BVA issues a decision; and (2) organizations can’t
present claims to the Veterans Court. Id. at 84. But the Sixth
and D.C. Circuits addressed the exact same issues and con-
cluded that the Veterans Court could adequately adjudicate
veterans’ claims that their benefits had been unreasonably
delayed. See Beamon, 125 F.3d at 967-70; Vietnam Veterans
of Am., 599 F.3d at 659-60 & n.6.
The Veterans Court “has authority to reach constitutional
issues in considering extraordinary writs [of mandamus],”
which it may grant “when the claimant has demonstrated that
he . . . has no adequate alternative means of obtaining the
relief sought.” Beamon, 125 F.3d at 969 (emphasis added)
(quoting Dacoron v. Brown, 4 Vet.App. 115, 119 (1993)).
This “power to issue writs of mandamus compelling VA offi-
cials to take action that has been unreasonably delayed”
extends to cases where “there has been no final decision by
the Board.” Vietnam Veterans of Am., 599 F.3d at 659 n.6
(emphasis added) (citing Erspamer v. Derwinski, 1 Vet.App.
3, 6-9 (1990)). Individual veterans can bring their constitu-
tional claims in the Veterans Court; should the court find a
due process violation, it will issue a writ of mandamus order-
ing appropriate relief. Those veterans denied a writ can appeal
their constitutional claim to the Federal Circuit. See Nielson
v. Shinseki, 607 F.3d 802, 805 (Fed. Cir. 2010) (“[W]e have
jurisdiction to review all legal questions decided by the Veter-
ans Court.”). Construing section 511 to preclude plaintiffs
from bringing their claims in our court doesn’t foreclose all
relief.5
5
Although the Sixth and D.C. Circuits addressed alleged delays in the
VA’s processing of disability claims, their analysis applies with equal
force to claims that the VA unreasonably delayed needed mental health
care. The Veterans Court can hear appeals of any issue raised before the
BVA, and the BVA’s governing regulations extend its appellate jurisdic-
tion to “questions of eligibility for . . . benefits administered by the Veter-
6382 VETERANS FOR COMMON SENSE v. SHINSEKI
Nor should we trouble ourselves that organizational plain-
tiffs can’t present constitutional claims in the Veterans Court.
Congress has broad powers to shape the procedural rules and
constitutional remedies available to veterans. See Walters,
473 U.S. at 333-34; cf. Tietjen v. U.S. Veterans Admin., 884
F.2d 514, 515 (9th Cir. 1989) (construing section 511’s pre-
decessor to foreclose all review of claim that VA violated due
process by ignoring its own regulations); Anderson v. Veter-
ans Admin., 559 F.2d 935, 936 (5th Cir. 1977) (per curiam)
(same for claim that hearing procedures violated veteran’s
constitutional rights). The majority actually points to Walters,
where the Supreme Court recognized these broad powers,
when it rejects plaintiffs’ claim that veterans’ constitutional
rights were violated by the absence of a class action procedure
in the VJRA. Maj. op. at 6369 (“Underlying all the procedural
restrictions cited by [plaintiffs] is what the [Supreme] Court
has already held to be the government’s interest in the cre-
ation and preservation of a non-adversarial system.”); see
complaint ¶ 30. Because plaintiffs brought “this action as the
representatives of their members . . . and as class representa-
tives,” organizational standing in our case would simply be a
tool, like class actions, for vindicating individual members’
interests. Complaint ¶ 38. If the absence of one tool doesn’t
render judicial review constitutionally inadequate, then, given
the broad powers Congress has to shape veterans’ remedies,
the absence of the other shouldn’t either.6 And the Veterans
ans Health Administration,” other than “[m]edical determinations” of the
type that “an attending physician” might face. 38 C.F.R. § 20.101(b).
Appointment scheduling decisions are not by any means medical determi-
nations, so the BVA—and therefore the Veterans Court—have jurisdiction
to review claims that such scheduling decisions violate due process.
6
The majority misses the point entirely when it notes that organizational
standing doesn’t serve “precisely the same purpose” as a class action. Maj.
op. at 6359 n.35. Walters held that Congress could effectively deny veter-
ans access to counsel without violating due process. 473 U.S. at 320, 326.
The right to counsel is far more important to a litigant seeking to vindicate
his rights than the option of bringing his claim through an organization.
If Congress has broad enough powers to effectively deny veterans the for-
mer, then it can certainly deny them the latter.
VETERANS FOR COMMON SENSE v. SHINSEKI 6383
Court’s holdings are binding on subsequent BVA and Veter-
ans Court adjudications, so a ruling on one veteran’s due pro-
cess claim will have a systemwide effect. See Beamon, 125
F.3d at 970 (citing Lefkowitz v. Derwinski, 1 Vet.App. 439,
440 (1991) (en banc) (per curiam)).
C. The Price-Thomas Rule: The majority spends pages and
pages creating circuit splits, but it never applies the correct
test for determining our jurisdiction. Price and Thomas held
that we lack jurisdiction if adjudicating a claim “would
require the district court to determine first whether the VA
acted properly in handling [the veterans’] benefits request[s].”
Broudy, 460 F.3d at 115 (emphasis omitted) (quoting Thomas,
394 F.3d at 974 (quoting Price, 228 F.3d at 422)) (internal
quotation marks omitted). This is the case for plaintiffs’ men-
tal health care and disability compensation claims, so even if
plaintiffs had standing to bring these claims, we would lack
jurisdiction over them.
Mental health care: The majority claims that “vast numbers
of veterans are denied access to mental health care by admin-
istrators,” and that the absence of “an appeals process to chal-
lenge appointment scheduling . . . violates the Due Process
Clause by providing insufficient process.” Maj. op. at 6338,
6347. The lack of an appeal can’t be unconstitutional unless
administrators schedule appointments in a way that actually
deprives veterans of their statutory entitlement to mental
health care: If there’s no deprivation, there’s no need for pro-
cess. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
569 (1972). This will depend on the facts of each veteran’s
case: An eight-week wait for an appointment constitutes a
deprivation for a veteran who’s pointing a gun at his head, but
it may be acceptable for a veteran who’s mildly depressed.
And there can be no deprivation if the veteran caused the
delay by rejecting earlier available appointments. Thus, there
is simply no way to adjudicate the due process claim without
“determin[ing] first” whether the VA’s administrative staff
“acted properly in handling” veterans’ requests for appoint-
6384 VETERANS FOR COMMON SENSE v. SHINSEKI
ments. Because plaintiffs’ mental health care claim requires
consideration of the VA’s decisions on individual requests for
benefits, the VJRA precludes us from reviewing it.
The majority brushes aside the VJRA’s limits on our juris-
diction by construing a footnote in the VA’s appellate brief to
“acknowledge[ ] that” plaintiffs’ purportedly systemic claims
“fall[ ] outside the VJRA’s jurisdictional bar.” Maj. op. at
6337. But the VA argued in district court that the VJRA does
preclude review of plaintiffs’ mental health care claim. The
supposed “acknowledgment” on appeal only pointed out that
plaintiffs framed their claims generally. See VA Br. 33 n.7
(“[P]laintiffs cannot now criticize the district court for using
a ‘systemic’ standard to assess delay when the generality of
their own claims compelled this approach.”). The VA didn’t
concede that the district court had jurisdiction over plaintiffs’
mental health care claim, and it’s wrong for a court to wring
a concession from a party’s ambiguous language. But it
doesn’t matter anyhow, because we have an “independent
obligation to ensure that [we] do not exceed the scope of [our]
jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 131 S.
Ct. 1197, 1202 (2011).
The majority responds by arguing that the VA “has not
issued a decision . . . that is final and conclusive and unre-
viewable.” Maj. op. at 6338 (emphasis and internal quotation
marks omitted). But the VJRA’s prohibition on judicial
review isn’t limited to final decisions. It extends to the VA’s
resolution of any “question[ ] of law [or] fact necessary to a
decision by the [agency] under a law that affects the provision
of benefits.” 38 U.S.C. § 511(a). Decisions by administrative
schedulers setting up mental health care appointments for vet-
erans are fully covered by the VJRA’s preclusive reach, and
we lack jurisdiction over any claim that would require a dis-
trict court to review them. See Price, 228 F.3d at 422;
Thomas, 394 F.3d at 974; see also Broudy, 460 F.3d at 115.7
7
The majority seems to think that the “relevant ‘decision’ here . . . is
whether the existing safeguards are constitutionally sufficient.” Maj. op.
VETERANS FOR COMMON SENSE v. SHINSEKI 6385
It makes no difference that Price and Thomas were “tort
suit[s] brought by an individual veteran,” while plaintiffs filed
“a suit for an injunction.” Maj. op. at 6339. Like the claims
in Price and Thomas, plaintiffs’ claim is based on an allega-
tion that the VA unjustifiably denied benefits to veterans—
here, by taking too long to provide them with mental health
care. And when plaintiffs in Broudy requested an injunction,
the D.C. Circuit still applied the Price-Thomas rule, although
it concluded that the district court had jurisdiction over the
particular claim there. 460 F.3d at 110, 115. The majority’s
clumsy effort to avoid a conflict with Price and Thomas will
not fly.
Disability compensation: The district court concluded that
section 511 barred plaintiffs’ disability compensation claim
because the issue of “whether a veteran’s [disability] benefit
claim adjudication has been substantially delayed will often
hinge on specific facts of that veteran’s claim.” This is abso-
lutely correct: The time the VA needs to adjudicate a claim
depends on its complexity as well as the amount of evidence
the VA needs to generate for the veteran, and PTSD claims
are among the most complex and fact-intensive. We can’t say
whether a delay is unreasonable without “determin[ing] first”
how much time the VA should have taken to process that vet-
eran’s disability compensation claim, and section 511 pre-
cludes us from making that determination. See Price, 228
F.3d at 422; Thomas, 394 F.3d at 974; see also Broudy, 460
F.3d at 115.
The majority rejects this conclusion because, supposedly,
the VA hasn’t “made a final decision in [plaintiffs’] members’
at 6339. But that’s the essence of plaintiffs’ mental health care claim. The
VJRA strips us of jurisdiction over any claim that would require us to
review any VA decision on a question of law or fact necessary to the agen-
cy’s resolution of a benefits request. See p.6382-83 supra. Here, we’d
have to review the decisions by VA administrative schedulers setting up
mental health care appointments.
6386 VETERANS FOR COMMON SENSE v. SHINSEKI
appeals; that their appeals languish undecided is the very
basis for their claim.” Maj. op. at 6356. But that’s not right:
Plaintiffs claim that most of the VA’s unreasonable delays
occur well before the BVA is able to rule on the veterans’
appeals. See id. at 6317-18; see also id. at 6315 (BVA’s time
to issue a ruling represents less than a third of the VA’s aver-
age delay in processing an appeal of a ratings decision). The
VA’s decisions before the appeal reaches the BVA are also
final and nonreviewable, except through the VJRA’s “special-
ized review process.” Bates, 398 F.3d at 1364; see p.6374
supra. Because we lack jurisdiction to review the decisions
creating these alleged delays, we can’t determine whether the
time the VA takes to process an appeal is unreasonable.
The majority clearly errs when it claims that Ҥ 511 does
not grant exclusive jurisdiction to any agency or court over a
class of legal claims, except challenges to ‘decision[s]’ . . .
that have actually been made by the Secretary.” Maj. op. at
6356 (alteration in original) (emphasis omitted). Price,
Thomas and Broudy held that section 511 grants the VA
exclusive jurisdiction over any claim the district court can’t
decide without “determin[ing] first whether the VA acted
properly in handling [the veteran’s] benefits request.”
Thomas, 394 F.3d at 974 (quoting Price, 228 F.3d at 422); see
also Broudy, 460 F.3d at 115. The very essence of plaintiffs’
delay claim is that the VA so mishandled veterans’ requests
for benefits that it deprived them of a protected property inter-
est. See maj. op. at 6340-41, 6363-64. We can’t adjudicate
this claim without evaluating whether the VA “acted proper-
ly” at each step in deciding the benefits requests.
The majority’s citation to Broudy doesn’t help them a bit.
Plaintiffs there alleged that the VA’s cover-up of radiation
test results denied them access to the courts. Broudy, 460 F.3d
at 109-10. They requested the “immediate release of all rele-
vant records and documents,” an injunction prohibiting any
further cover-up, damages and related relief. Id. The D.C. Cir-
cuit held that it had jurisdiction over this denial of access
VETERANS FOR COMMON SENSE v. SHINSEKI 6387
claim, which is again consistent with the Price-Thomas rule.
See id. at 115. Plaintiffs weren’t “asking the District Court to
decide whether any of the veterans whose claims the Secre-
tary rejected [were] entitled to benefits” or “to revisit any
decision made by the Secretary in the course of making bene-
fits determinations.” Id. Because the court didn’t need to
determine whether the VA “acted properly in handling [a]
benefits request,” the VA didn’t have exclusive jurisdiction.
Id. (emphasis and internal quotation mark omitted).
Here, there’s no way to adjudicate plaintiffs’ due process
claim without revisiting the VA’s decisionmaking. See
pp.6385 supra. Broudy recognized that in such situations, the
rule set out in Price and Thomas grants the VA exclusive
jurisdiction. See 460 F.3d at 115. Rather than supporting the
majority’s position, Broudy actually undermines it.
The other case on which the majority relies—Hanlin v.
United States, 214 F.3d 1319 (Fed. Cir. 2000)—is entirely
inapposite. There, an attorney sued the VA for attorney’s fees
under a breach of contract theory. Id. at 1320. The Federal
Circuit held that it had jurisdiction over his claim, which is
fully consistent with the Price-Thomas rule. See id. at 1322.
The attorney didn’t challenge anything about the VA’s under-
lying decision on his client’s request for veterans’ benefits.
See id. at 1320-21. And the statute governing attorney’s fees
didn’t force him to pursue his claim through the VA’s admin-
istrative process: He had the option of suing in district court.
Id. at 1321-22; see 38 U.S.C. § 5904(d). Section 511 therefore
didn’t “require the Secretary to address [the attorney’s] claim
and thus [did] not provide the VA with exclusive jurisdic-
tion.” Hanlin, 214 F.3d at 1321.
Plaintiffs here represent veterans who could file their bene-
fits claims only with the VA. See 38 U.S.C. § 5101(a) (“A
specific claim in the form prescribed by the Secretary . . .
must be filed in order for benefits to be paid or furnished to
any individual under the laws administered by the Secre-
6388 VETERANS FOR COMMON SENSE v. SHINSEKI
tary.”). When they did, the VA was required to address their
claims and therefore acquired exclusive jurisdiction. See Han-
lin, 214 F.3d at 1321 (“[T]hrough the filing of a claim with
the VA[ ], 38 U.S.C. § 511(a) imposes a duty on the Secretary
to decide all questions of fact and law necessary to a decision
in that case.”).
II
The majority creates a second conflict with the VJRA by
installing a district judge as arbiter of whether the VA’s
appeals procedures violate due process. The VA has already
considered the process due to veterans8 and promulgated regu-
lations establishing informal, nonadversarial appeals pro-
cesses. See Vietnam Veterans of Am., 599 F.3d at 656.9 But
8
See, e.g., Stressor Determinations for Posttraumatic Stress Disorder, 75
Fed. Reg. 39,843, 39,849 (July 13, 2010) (to be codified at 38 C.F.R. pt.
3) (rejecting claim that restriction on using private doctors to rebut VA
determinations violates due process); Board of Veterans’ Appeals: Obtain-
ing Evidence and Curing Procedural Defects Without Remanding, 67 Fed.
Reg. 3099, 3101 (Jan. 23, 2002) (to be codified at 38 C.F.R. pts. 19 and
20) (“We think this time-tested approach will adequately serve the inter-
ests of veterans both in being heard and in receiving a prompt decision on
appeal. In sum, we believe we are protecting the important due process
rights of all appellants.”); Well-grounded Claims, 64 Fed. Reg. 67,528,
67,528 (Dec. 2, 1999) (to be codified at 38 C.F.R. pt. 3) (recognizing that
“grave questions of due process can arise if there is apparent disparate
treatment” in the VA’s “volunt[eering of] assistance” to claimants); Com-
pensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663
(Feb. 3, 1995) (to be codified at 38 C.F.R. pt. 3) (“[T]hose sections of the
regulations also provide for a 60-day predetermination period . . . in order
to safeguard a veteran’s due process rights.”); Appeals Regulations; Rules
of Practice, 54 Fed. Reg. 34,334, 34,342 (Aug. 18, 1989) (to be codified
at 38 C.F.R. pts. 14, 19 and 20) (explaining that appeal certification “en-
sure[s] that the appeals development procedures have been adequate, par-
ticularly as they affect the [veteran’s] due process rights”).
9
The VA’s regulations, which must be construed to “secure a just and
speedy decision in every appeal,” 38 C.F.R. § 20.1, provide far more help
to individual veterans than do our circuit’s rules of appellate procedure. A
veteran may initiate an appeal by filing a “written communication . . .
VETERANS FOR COMMON SENSE v. SHINSEKI 6389
the VJRA precludes review of VA regulations anywhere but
in the Federal Circuit. See 38 U.S.C. § 502; Preminger v.
Principi, 422 F.3d 815, 821 (9th Cir. 2005). The district court
can’t review the VA’s procedures without also reviewing its
regulations, and it therefore lacks jurisdiction to carry out the
majority’s marching orders.
The majority vainly attempts to distinguish section 502 by
characterizing plaintiffs’ claims as challenges to “the VA’s
actual conduct,” and “not its codified rules.” Maj. op. at 6354
(emphasis omitted); see id. at 6354 (“[Plaintiffs] challenge . . .
only the VA’s failure to discharge its duty to veterans in a
short enough time to avoid depriving them of their property
interest without due process.”). This is a distinction without
a difference: Were the district court to order the VA to engage
in or cease a certain course of conduct, the VA would have
to conform its regulations to the district court’s order. See
Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 860
(9th Cir. 2007) (“[T]he VA cannot usurp the power of a dis-
trict court to construe the provisions of an order it has issued
. . . simply by issuing a regulation interpreting that order or
declining to follow it.”). Had plaintiffs “solely challenged the
expressing dissatisfaction or disagreement” with the rating decision “and
a desire to contest the result.” Id. §§ 20.200, 20.201. The VA “must reex-
amine the claim and determine whether additional review or development
is warranted.” Id. § 19.26(a). The veteran can also ask to have the rating
decision reviewed by a more senior VA official. Id. § 3.2600(a). If the VA
concludes after initial review that the rating is correct, it must “prepare a
Statement of the Case” that “must contain” a summary of the evidence and
applicable laws, “with appropriate citations,” and the reason for the denial
of benefits. Id. §§ 19.26(d), 19.29. The VA will then send the Statement
of the Case to the veteran, who can use it to file a more detailed “Substan-
tive Appeal” of the VA’s decision. Id. §§ 19.30(a), 20.202. The final step
before the BVA begins its review is for the Regional Office to certify the
veteran’s appeal. Id. § 19.35. Certification “primarily functions as a check
list for the [VA] to insure [sic] that all appeal processing procedures have
been completed.” Appeals Regulations; Rules of Practice, 57 Fed. Reg.
4088, 4091 (Feb. 3, 1992) (to be codified at 38 C.F.R. pts. 14, 19 and 20).
6390 VETERANS FOR COMMON SENSE v. SHINSEKI
VA’s non-regulatory failure to act,” the district court and our
court might have jurisdiction. See id. at 858. But they didn’t:
They challenged conduct that the VA’s existing regulations
either permit or require. Their suit is a direct challenge to the
regulations themselves and therefore barred by section 502.
III
Even if we had jurisdiction, plaintiffs’ due process claims
would fail on the merits. The Supreme Court explained in
Walters v. National Association of Radiation Survivors that
the due process balancing test must accommodate Congress’s
strong, centuries-old interest in administering veterans’ bene-
fits in a manner that’s “as informal and nonadversarial as pos-
sible.” 473 U.S. at 323; see id. at 326 (“[U]nder the Mathews
v. Eldrige analysis great weight must be accorded to the Gov-
ernment interest at stake here.”); see also Nat’l Ass’n of Radi-
ation Survivors v. Derwinski, 994 F.2d 583, 588-89 (9th Cir.
1992) (concluding that “in passing the [V]JRA Congress reaf-
firmed the government’s interest”). Installing a judge as over-
seer of the VA’s appeals procedures will unquestionably harm
that interest: Plaintiffs must therefore make “an extraordinar-
ily strong showing of probability of error under the present
system . . . to warrant a holding that [a VA procedure] denies
claimants due process of law.” Walters, 473 U.S. at 326.
Plaintiffs fail to clear this high hurdle.
A. Mental health care: The majority claims that veterans
“placed on waiting lists by administrators” are denied their
statutory entitlement to timely medical care. Maj. op. at 6347.
Because “no procedure is in place to ensure that mental health
appointments are provided soon enough to be effective,” the
“marginal value of ‘additional’ procedural safeguards is
extraordinarily high.” Id. at 6345. But Dr. Murawsky, a VA
Chief Medical Officer, testified about several such existing
safeguards; the district court credited this testimony. Because
the majority misunderstands this evidence, I summarize those
safeguards below.
VETERANS FOR COMMON SENSE v. SHINSEKI 6391
The VA’s most important safeguard protects any veteran
who “shows up at a medical center . . . and expresses suicidal
intentions.” He will be “evaluated by a nurse and then would
be seen in the emergency department by a physician.” Should
the veteran come to a VA clinic, he’ll “be shown to a doctor”;
if he speaks “to a non-medical personnel, then . . . they would
refer [the veteran] to a nurse” and “[m]ight bring the [veteran]
to the emergency department or to the mental health center”
at the clinic. The VA conducts “secret shopper” tests where
actors posing as suicidal veterans test clinic compliance with
the immediate-treatment policy.
Nor does the veteran need to “walk[ ] into a VA emergency
room or clinic,” as the majority claims. Maj. op. at 6346. Dr.
Murawsky explained that if a veteran calls up and expresses
a need for care:
A number of things could happen. The [veteran]
could be referred directly to the [VA’s] suicide
hotline, the 800 number that’s set up by the VHA.
The individual could be transferred to a nurse or a
provider to speak to that individual and determine
what is happening at that time. . . . [I]f it’s nighttime
. . . . [the] call is directed to [a VA] call center,
where an RN [registered nurse] will answer the line
directly, take a patient’s concern and complaint, and
then make a decision on . . . calling a provider on
call or taking care of the—whatever happens to be
the need immediately.
Thus, veterans who can’t make it to a clinic can reach a medi-
cal professional at any time.
The majority entirely ignores the VA’s national 24/7 sui-
cide prevention hotline. In its first six months, this hotline
received 26,000 calls and referred 2,000 veterans to a Suicide
Prevention Coordinator. The VA reported that its hotline
received 260,000 calls and recorded its 10,000th rescue after
6392 VETERANS FOR COMMON SENSE v. SHINSEKI
only three years of operations. Dep’t of Veterans Affairs, FY
2010 Performance and Accountability Report at I-15 [herein-
after “VA Report”].10 VA’s National Suicide Prevention
Coordinator described these callers as:
[P]eople who call us but they’ve already taken pills,
or they have a gun in their hands, or they’re standing
on a bridge. . . . These are the calls where we can’t
wait. We call emergency services right away. . . .
[T]his one call is their last resort.
Id. The hotline is an effective tool for delivering care to veter-
ans who are unwilling or unable to come to a clinic, or who
suffer a crisis before their scheduled appointment.
Veterans who don’t need emergency care are protected by
a policy set out in the Feeley Memo requiring that “those indi-
viduals who either self request [a mental health appointment]
or were consulted for mental health . . . have an initial evalua-
tion within 24 hours and . . . be seen within 14 days of that
initial evaluation.” Dr. Murawsky testified that his facilities
met the 24-hour rule “about 60 to 80 percent” of the time and
“do very well with the 14 day access component,” with most
delays “based on the veteran’s choice: work schedules, family
needs.” The majority focuses on the fact that the “VA lacks
any method to ensure compliance” with these policies system-
wide, maj. op. at 6348, but plaintiffs didn’t produce evidence
that the VA failed to follow the policy. The evidence in the
record showing longer wait times is from May 2007, one
month before the Feeley Memo was issued. There is no evi-
dence that most veterans aren’t seen within 24 hours after
they initiate a request or consultation.
The majority also seems to think that administrative
schedulers control the timing of veterans’ mental health care
10
The VA’s annual report is an official document that the Secretary pre-
pares and submits to the President and Congress. VA Report at I-1.
VETERANS FOR COMMON SENSE v. SHINSEKI 6393
appointments. See id. at 6345 (“[V]eterans whose delayed
care stems from administrative decisions have no right . . . to
insist that they be evaluated by a medical professional
. . . .”). Not true. Plaintiffs’ lawyer proposed the following
hypothetical to Dr. Murawsky:
If a veteran shows up to one of your clinics and says,
“Well, I’m not feeling too well, I think I need to
speak to someone,” and if the person there tells
them, “Well, we don’t have any appointments right
now, why don’t you come back in six weeks,” what
is the veteran to do?
Dr. Murawsky testified:
That wouldn’t happen. As far as I’m aware, I have
not heard any incidents of that happening. What you
describe is a clerk making a medical decision. . . .
That [veteran] would be referred to a nurse who
could triage the patient and make a determination of
whether they were medically safe or psychiatrically
safe. (Emphasis added.)
Plaintiffs never rebutted this testimony.
The majority gets the order of events backwards: Medical
staff see the veteran first, and only then does he speak to an
administrative scheduler to set up an appointment within the
time determined to be appropriate by the medical profes-
sional. As the quoted paragraphs indicate, administrative staff
do not turn away veterans who want to speak with medical
personnel. None of the “examples” or “stor[ies]” the majority
cites come anywhere near proving that administrative staff
deny needed care to veterans.11
11
Plaintiffs provided eight redacted declarations by veterans suffering
from PTSD or friends and family of veterans who committed suicide. The
majority cites two of these, but neither actually states that administrative
6394 VETERANS FOR COMMON SENSE v. SHINSEKI
Dr. Murawsky testified that because a veteran who shows
up at a clinic will have “spoke[n] to a nurse,” he “would have
had a medical triage or a decision made.” Should the veteran
disagree when the nurse tells him, “ ‘You are . . . safe to wait’
for however long it might be, . . . then the veteran has the
right to appeal that decision” by saying, “I want an earlier
appointment.” (Internal quotation marks omitted.) This is
essentially the same as saying, “I disagree with the decision
scheduling staff denied medical care. Contra maj. op. at 6345-46. In one,
the veteran went to the emergency room but decided not to check in after
“a veteran in the waiting room told me that [it] was full of hardcore drug-
addicts.” Veteran 1 Decl. ¶ 14 (name redacted in the record). The veteran
later fired two VA psychiatrists: the first because she stopped prescribing
him a highly addictive sleep aid, and the second because she didn’t read
the first psychiatrist’s notes. Id. ¶¶ 18-19. The second veteran committed
suicide after being denied inpatient treatment at a VA hospital because
“there were no beds available”; one “staff member” said “he didn’t have
time to see” the veteran that day but he “should call back the next day.”
Mother 1 Decl. ¶¶ 8-10 (name redacted in the record). The VA’s failure
to provide care to the veteran was due to a lack of medical resources, not
the actions of an appointment scheduler.
One of the declarants described his care as “helpful” and stated that his
VA counselor helped him avoid suicide. Veteran 2 Decl. ¶¶ 10, 13. Three
of the other declarants described denials of care by medical staff. Here’s
what they said, with names redacted in the record and emphasis added:
“The VA doctors failed to acknowledge . . . my brother’s behavior and
suicidal intent . . . and failed to make every effort to treat the cause of his
condition.” Sister 1 Decl. ¶ 19. “[H]e was prescribed medications and
allowed to see a therapist once per month.” Girlfriend 1 Decl. ¶ 4. “[T]he
Marine Corps doctors would not order an MRI or a CAT Scan, . . . and
only gave him narcotic pain medications . . . .” Brother 1 Decl. ¶ 13. One
veteran was unhappy with the frequency of his appointments and his care-
givers’ qualifications, but he didn’t state that a VA administrator denied
him more frequent appointments. See Veteran 4 Decl. ¶ 10. And the other
declarant did fall through the cracks and waited many months for mental
health care, but he also didn’t claim that a VA administrative staffer
denied a request for an earlier appointment. See Veteran 3 Decl. ¶¶ 15-19.
In none of these examples did a VA administrative scheduler deny a veter-
an’s request for mental health care.
VETERANS FOR COMMON SENSE v. SHINSEKI 6395
that it’s okay for me to wait; I’m not all right.” (Internal quo-
tation marks omitted.)
Veterans don’t even have to file an appeal themselves; they
can seek the help of a Patient Advocate, who will champion
their cause within the VA. As anyone who’s been to the hos-
pital recently knows, having such an advocate can be invalu-
able. The VA’s Patient Advocates are either onsite or
reachable by phone; they will appeal the nurse or doctor’s
decision up the chain of command, and, according to VA pol-
icy, senior medical staff must respond “within seven calendar
days . . . to a patient complaint.” If the veteran disagrees with
the response, he can continue to appeal, asking for a third
opinion, and the doctor giving that opinion may bring in a
non-VA specialist.
Creating additional processes for reviewing administrative
scheduling decisions would be pointless. Veterans who
require immediate care can walk into a clinic, tell a medical
professional how they feel over the phone or call the 24/7 sui-
cide hotline. See p.6391 supra. Veterans who don’t need
immediate care and request their first mental health care
appointment are protected by the Feeley Memo’s policy that
they receive an initial evaluation within twenty-four hours and
be seen within fourteen days of that evaluation. See p. 6392
supra. And for ongoing care, administrative schedulers set
appointments within the time determined to be safe by the
medical staff. Contra maj. op. at 6345-46. If a medical profes-
sional says it’s OK to wait six weeks, it makes no difference
whether the appointment scheduler sets up an appointment in
two weeks or four.
The majority claims that schedulers routinely set up
appointments that deviate from the doctor or nurse’s medical
assessment, but the only evidence it cites are a 2005 report on
the VA’s progress in implementing several PTSD treatment
programs and a 2007 audit of the VA’s general outpatient
waiting times. Id. at 6347. The 2005 PTSD treatment report
6396 VETERANS FOR COMMON SENSE v. SHINSEKI
didn’t address administrative scheduling and is six years out
of date, in any event. The 2007 audit has no data or conclu-
sions on mental health wait times. It “reviewed a non-random
sample of 700 appointments with . . . reported waiting times
of 30 days or less” and concluded that schedulers’ incomplete
record-keeping and “some ‘gaming’ of the scheduling pro-
cess” for electronic waiting lists rendered unreliable the VA-
collected data on waiting times and the number of patients on
such waiting lists.12 This proves at most that large systems
involving many participants are subject to occasional glitches;
it comes nowhere near proving that administrative schedulers
systematically delay veterans’ mental health care treatment
beyond the maximum wait time determined by a medical profes-
sional.13
The VA has rolled out multiple, overlapping safeguards to
ensure that veterans receive necessary mental health care. The
evidence shows that these safeguards, while not perfect, work
reasonably well. Plaintiffs have failed to show that current
procedures create an “extraordinarily strong showing of prob-
ability of error.” Walters therefore precludes us from finding
a due process violation.
12
The audit found that, due to differences between the appointment date
requested by the nurse or doctor and the actual appointment date shown
in the VA’s systems, waiting times were overreported in 25 percent of
appointments and underreported in 47 percent of them. The VA claimed
that most of these differences could “be attributed to patient preference for
specific appointment dates that differ from the date recommended by med-
ical providers.” But because schedulers often failed to note in the VA’s
systems that the veteran had requested a different date, the auditors
couldn’t verify the VA’s claim. The differences were “unexplained,” maj.
op. at 6347, only because the VA couldn’t produce such notations.
13
The majority also quotes a fragment of the introduction to the 2007
audit describing an earlier 2005 audit of outpatient waiting times. See maj.
op. at 6347-48. That audit has the same flaws as the 2007 audit and is
equally unhelpful. See generally Dep’t of Veterans Affairs, Office of
Inspector General, No. 04-02887-169, Audit of the Veterans Health
Administration’s Outpatient Scheduling Procedures (2005).
VETERANS FOR COMMON SENSE v. SHINSEKI 6397
B. Disability compensation: The majority is “particularly
doubtful” that “any government interest could justify” the
average delays in adjudicating veterans’ disability claims.
Maj. op. at 6363 (emphasis added). But Walters holds that we
must accord “considerable leeway to” Congress’s judgment
that existing procedures adequately protect veterans against
the risk of erroneous deprivation. 473 U.S. at 326. Congress
hasn’t been shy about imposing rules on the VA to address
perceived failures in processing disability benefits. See Neh-
mer, 494 F.3d at 849 (discussing Congress’s enactment of
legislation simplifying the claims process for Agent Orange-
connected ailments); see also 38 U.S.C. § 1112(b) (former
POWs); id. §§ 1112(c) (radiation); id. §§ 1117-18 (Gulf War
veterans’ illnesses). But it imposed no such rules on mental
health-related disability benefits, nor did it impose any statu-
tory deadline on the VA’s processing of appeals.
Congress recently had an opportunity to tighten control
over the VA’s administration of mental health disability bene-
fits when it passed the Veterans’ Benefits Act of 2010, Pub.
L. No. 111-275, 124 Stat. 2864. But it didn’t: The Act relaxes
only the rules for compensating disabilities caused by a Trau-
matic Brain Injury (TBI). Id. § 601(b), 124 Stat. at 2884. TBI
is commonly linked to PTSD and depression; that Congress
specifically addressed one but not the other is strong evidence
that Congress doesn’t want us to impose our own remedies.
See Heckler v. Day, 467 U.S. 104, 111-12 (1984).
When Congress has “committed the timing of hearings and
reviews to the discretion of the” agency, “courts should be
hesitant to require [additional procedures].” Wright v. Cali-
fano, 587 F.2d 345, 353 (7th Cir. 1978). That’s particularly
true where, as here, the delays are systemwide and “the result
of a tremendous explosion in the number of claims that have
had to be processed.” Id.; see maj. op. at 6304. Congress
already exercises vigorous oversight of the VA through its
ability to hold hearings on the agency’s operations. See Dep’t
of Veterans Affairs, VA Testimony before Congressional
6398 VETERANS FOR COMMON SENSE v. SHINSEKI
Committees, http://www.va.gov/oca/testimony/testimony_
index.asp (last visited Mar. 26, 2011) (collecting House and
Senate testimony by VA officials). Because Congress is
already actively involved in the agency’s affairs, “program-
matic improvements” should be made “in the offices of the
[VA] or the halls of Congress,” not through litigation. Lujan
v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990); see also
Heckler v. Campbell, 461 U.S. 458, 466-67 (1983).14
The majority’s judicial adventurism is exceedingly trou-
bling because the VA is no ordinary agency: It provides medi-
cal care to over 5.8 million patients and pays pension and
disability benefits to approximately 4 million people. VA
Report at I-24. It employs hundreds of thousands, spends
more than $100 billion a year, and has numerous responsibili-
ties above and beyond mental health disability compensation.15
Id. at I-27. These responsibilities require the VA to make
tough decisions on how to allocate its resources. We lack the
institutional competence to revisit these decisions and “the
many variables involved in the proper ordering of [the agen-
cy’s] priorities.” Heckler v. Chaney, 470 U.S. 821, 831-32
(1985).
The majority’s instructions on remand illustrate the folly of
14
This litigation wouldn’t be possible without the reports Congress
ordered the VA and GAO to produce, such as the 2007 waiting time audit,
the 2005 PTSD implementation report and the May 2007 report on mental
health waiting times. And Congress can and does subpoena executive
agency documents when there’s a concern that the executive branch is hid-
ing important information. See Josh Chafetz, Executive Branch Contempt
of Congress, 76 U. Chi. L. Rev. 1083, 1132-43 (2009). It’s the majority
that “gets political reality exactly backwards.” Maj. op. at 6341 n.27.
15
The VA in its last fiscal year provided services to 90,000 homeless
veterans, paid education benefits to hundreds of thousands of service
members, reservists and family members, managed 7 million life insur-
ance policies, paid for vocational rehabilitation for 107,000 people, guar-
anteed 314,000 housing loans and maintained just over 3 million graves.
VA Report at I-3, I-7, I-24.
VETERANS FOR COMMON SENSE v. SHINSEKI 6399
its due process holding. The district court must “conduct evi-
dentiary hearings in order to determine what procedures
would remedy the existing due process violations in the
[VA’s] claims adjudication process” and “explore what proce-
dural protections are most appropriate to permit the appeals of
veterans to be expedited in the most efficient manner.” Maj.
op. at 6366. But the district court already held a four-day pre-
liminary injunction hearing and a seven-day trial; together,
these generated 2230 pages of transcripts. The parties pre-
pared well over a thousand exhibits, and the district court
admitted over a hundred of them at trial. I can’t imagine what
new evidence there is for the district court to discover or how
it will order systemwide changes to the VA’s adjudicative and
administrative processes.
***
The majority dramatically oversteps its authority, tearing
huge gaps in the congressional scheme for judicial review of
VA actions. It overrules both Congress’s and the VA’s judg-
ment on the amount of process due to veterans seeking bene-
fits. And it rearranges the VA’s organizational chart by
appointing a district judge to head the agency. Congress
enacted the VJRA to beat back the last judicial power-grab
targeted at the VA. Unless corrected, today’s decision will
surely prompt Congress to pass a new “VJRA Restoration
Act” to rein in the majority.