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Veterans For Common Sense, A v. Eric K. Shinseki

May 10, 2011


Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding D.C. No. 3:07-cv-03758-SC

The opinion of the court was delivered by: Reinhardt, Circuit Judge



Argued August 12, 2009 San Francisco, California

Submitted September 14, 2009

Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Chief Judge Kozinski


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 psychological maladies are entitled by law to disability benefits 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 privation. 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"*fn1 ), 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, Veterans 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 preferred 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 rendered 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 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 governmental 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 consistent with the Constitution. The Constitution affirms that the People have rights that are enforceable against the government. One such right is to be free from unjustified governmental deprivation of property - including the health care and benefits that our laws guarantee veterans upon completion of their service. Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their constitutional rights. Wars, including wars of choice, have many costs. Affording our 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 constitutional 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 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 veterans 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 obligation to take this extraordinary step.*fn2

We affirm the district court's rulings with respect to Veterans'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 provisions 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 provide 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 procedural deficiencies in the compensation claims adjudication 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.


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,*fn3 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."*fn4 The VA has three branches: the Veterans Health Administration ("VHA"), the Veterans Benefits Administration ("VBA"), and the National Cemetery Administration ("NCA"). This case involves statutory and constitutional 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 for any medical condition, even if the condition is not attributable 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 readjustment counseling and related mental health care services to eligible veterans. See 38 U.S.C. § 1712A. The Secretary of Veterans Affairs is required to "furnish counseling to the veteran 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 readjustment 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 receiving the request." 38 U.S.C. § 1712A(a)(3). If the physician or psychologist who conducts the mental health evaluation determines 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 administer 153 VA hospitals (or medical centers), approximately 800 community-based outpatient clinics, and 200 Readjustment 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 provision 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 unprecedented number of newly-discharged veterans have been diagnosed as suffering from mental disorders, in particular PTSD, as a result of military service in Iraq or Afghanistan. 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.*fn5 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 gruesomeness, such as [what] occurs in combat, severe vehicular accidents 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, family, 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 "currently suffer PTSD or major depression." Delays in the treatment of PTSD can lead to alcoholism, drug addiction, homelessness, anti-social behavior, or suicide.

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 population. The author of that study, a senior physician and administrator 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 subsequently noted that the VHA's "suicide prevention coordinators" 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 Strategic 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 introduced have fallen short of the Plan's express goals. For example, 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 automatically assessed. All veterans who specifically present*fn6 with 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 psychiatric unit.*fn7

The May 2007 OIG report concluded that there was a widespread 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 suicide. 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.*fn8 There were, however, no suicide prevention officers at any of the approximately 800 community-based outpatient clinics, where most veterans receive their medical care.

The effect of VHA's failure to implement a systematic program designed to reduce veterans' risk of suicide has been magnified by its failure to adopt measures to ensure that veterans 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 veterans 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 percent 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 mental 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 statements, 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 Secretary 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 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 initiative 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 waiting lists for mental health services.*fn9

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 colleague 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 complaint within seven days. If the veteran disagrees with the Chief of Staff's decision, he may further appeal to the Director of the Veterans Integrated Service Network, who makes a final decision on the veteran's complaint. If the veteran disagrees with the Director's decision, he may ask the Director to request an external review. The veteran himself may not request such a review; only the Director may do so. Moreover, 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 Information 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 Compensation" benefits. Veterans with service-connected disabilities - 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 million 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 financial 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.


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 would entitle him to benefits, and a nexus between the disability and the military service.*fn10

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 Representative 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 "reasonable efforts" to acquire non-federal records, most notably pri- 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 decision on the claim." 38 U.S.C. § 5103A. This medical examination 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 Compensation 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. Moreover, a veteran who has been previously diagnosed by a physician 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.

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.*fn11

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 difficult 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 rating 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 disability assigned to the veteran, or the effective date of the disability. 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 processes: (1) de novo review of his claim by a Decision Review 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 veteran is entitled to retain paid counsel at this stage of the proceedings. 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 formal 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 rating 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 further 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.*fn12 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 Federal Circuit, which has authority to "decide all relevant questions of law," 38 U.S.C. § 7261(a), and he may ultimately petition for certiorari in the Supreme Court of the United States.


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 Disagreement 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 surviving 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.*fn13 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 180 days. The district court found that, because of the inherent 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, veterans 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 veteran 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 hearing - at their own expense - in front of a Board of Veterans' 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 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 experience 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 proceedings 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[ffice] 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 second 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 consequences 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 Veterans United for Truth filed a complaint in the district court seeking declaratory and injunctive relief, on behalf of themselves, their members, and a putative class composed of all veterans with PTSD who are eligible for or receive VA medical services, and veteran applicants for and recipients of service-connected death or disability compensation benefits based upon PTSD. In the complaint, Veterans raised numerous statutory and constitutional challenges to the procedures the VA employs in its provision of health care services and adjudication of benefits claims.*fn14

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 veterans' statutory entitlements and constitutional right to due process:

(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 Veterans can obtain expedited relief in urgent cases such as an imminent suicide threat

(4) The VHA had delayed implementing governmental recommendations for improve procedures pertaining 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 practices and procedures:

(1) The VBA acts as both the trier of fact and adversary 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 procedures at the VBA Regional Office stage of the adjudication 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 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:

(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 veterans for the maximum period specified in 38 U.S.C. § 1710(e)(1)(2) (5 years)*fn15

(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 veterans' 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 denied. After Veterans moved for a preliminary injunction on their mental health care claims, the district court held an evidentiary hearing. Instead of ruling on the motion for a preliminary 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 limitations 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 substantially 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 injuries 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 at 1077 (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)).*fn16

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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 discretion." Finally, the court found insufficient ...

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