Despite the late hour, paralegals occupied every computer and scurried about, loading boxes to be delivered early in the morning for the first day of trial. Others worked in the hallways, wrapping large, colorful demonstrative exhibit graphs: the abhorrent neglect of wounded veterans reduced to numbers and plotted on vivid trajectories for the Court and the American people to see.
Attorneys rehearsed presentations with technicians in grand, well-appointed conference rooms. Databases were loaded with crucial video excerpts of depositions we’d taken in recent months, and hundreds of trial exhibits. Among them was the smoking gun email, from a Veterans Administration official, discovered by a jubilant associate in the wee hours of the morning. It began with “Shh!”
But the time for secrecy was long past.
We’d been racing against the clock for weeks, fueled by adrenalin and despair over the injustice plaguing our clients, U.S. war veterans suffering from post traumatic stress disorder and other maladies, who now had to battle the VA to obtain what was rightfully theirs. Their suicide rates were astronomical, and Senior Judge Samuel Conti, an Army veteran himself, had expedited the proceedings.
Our mastermind was the late Gordon (“Gordy”) P. Erspamer, a senior partner at Morrison & Foerster LLP, and champion of veterans’ rights. His determination was grounded in deeply personal experience. His father, Ernest G. Erspamer, had been a scientist who was exposed to ionizing radiation during atomic tests in 1946, while serving as a Navy officer aboard the USS Bowditch. He filed a VA claim for disability compensation in 1947, which was denied. He was exposed to further radiation in the 1960s at the U.S. Army Chemical School at Fort McClellan, Alabama. After being diagnosed with leukemia, he reopened his claim in 1979. It was denied, his illness deemed not “service-connected.” He appealed, but died in 1980, survived by his wife and 8 sons.
Gordy pursued the claim, which now sought death benefits. Ten years later, 43 years after the original claim was filed, it was the first case decided by the newly-minted U.S. Court of Appeals for Veterans Claims, a court tasked with overseeing individual claims denied by the VA. See Erspamer v. Derwinski, 1 Vet. App. 3 (1990). The Erspamer claim was finally granted in full.
Fast forward to 2007. A hero to veterans, because of his years of dogged advocacy on their behalf (all pro bono, supported by Morrison & Foerster LLP), Gordy kept hearing accounts of soldiers returning from Afghanistan and Iraq with devastating injuries who were struggling to obtain help from the VA. Many experienced precipitously long waits for treatment, were being misdiagnosed, had their injuries underrated (and, therefore, under-compensated), or were being given fallacious “personality disorder” discharges. Delays and denials of care and multiple deployments were leading to suicide.
We filed Veterans for Common Sense v. Peake, U.S.D.C. No. C 07-3758 SC (N.D. Cal.) on July 23, 2007. The Firm maintains a website which contains all the relevant court filings, transcripts, articles—plus many resources for veterans—at the following URL: www(dot)veteransptsdclassaction(dot)org.
The Complaint explained that “Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse and alcoholism, and crushing burdens on the health care delivery system and other social services in our communities.”
Our objective was to expose VA failures either to provide proper health care to veterans or expeditiously process disability claims. We sought a court order declaring that VA actions deprive veterans of their Constitutional right of due process of law, or meaningful access to the courts in pursuing their claims, that VA’s obligation to provide medical care to veterans is mandatory, and that VA’s benefits application and appeals policies and procedures exclude people with mental disabilities from proper diagnosis and receipt of disability benefits. We also sought injunctive relief—an order restraining VA from refusing medical treatment to veterans, from delaying veterans’ death and disability claims, from forcing veterans to prosecute their claims without the assistance of counsel, from issuing improper discharges or committing other injurious practices.
We had a lot to prove and not much time. Plaintiffs opened with the incendiary email: “Shh! Our suicide prevention coordinators are identifying about 1,000 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?” Not only was VA aware of the actual suicide statistics, it was covering them up. The CBS Evening News featured the email and trial in its broadcasts.
Gruesome facts emerged during the trial:
• There are approximately 18 suicides per day among America’s 25+ million veterans;
• On any given night in the U.S. 154,000 veterans are homeless;
• One out of every 3 soldiers returning from Iraq is seen by the VA for mental health concerns within a year of returning. PTSD is the leading diagnosis;
• PTSD results from multiple deployments, the inability to identify the enemy, the lack of real safe zones, and the inadvertent killing of innocent civilians;
• The number of veterans diagnosed with PTSD doubled between 1997 and 2005; during 2003-2005, there was a 232% increase in PTSD diagnoses for veterans born after 1972;
• In July, 2007 the VA implemented a national suicide prevention hotline, which received 26,000 calls in its first 5 months;
• 18.5% of U.S. service members who have returned from Iraq and Afghanistan have PTSD. Only half of those who need treatment for PTSD seek it, and those who do so receive “only minimally adequate” care. An estimated 300,000 soldiers deployed to Iraq and Afghanistan suffer from PTSD or major depression;
• The suicide rate among veterans is 3.2 times that of the general population;
• The VA has sufficient funding to carry out its mission of ensuring that veterans have the medical care they need, even a “worst-case scenario” of an influx of veterans returning from Iraq and Afghanistan with mental illness;
• VA’s delays in providing medical care and adjudicating disability claims are growing;
• In February, 2007, 182,141 veterans had been waiting more than 30 days for an appointment; as of April, 2008 there were 85,450 veterans on waiting lists for mental health care services;
• Some VA personnel were interpreting the guidance to reduce waiting times for veterans as an instruction never to put their names on the electronic waiting list—in effect not giving them appointments at all;
• It takes an average of 183 days for a veteran’s claim for benefits to be decided;
• More than 82% of Army and Marine soldiers have a high school education or less, but each veteran has to complete and submit a 23-page application to their VA Regional Office to file a claim for benefits. Veterans often make mistakes when completing this, particularly if they have PTSD;
• Veterans were statutorily prohibited from compensating a lawyer to represent them at this beginning stage of the claims process;
• If veterans disagree with the rating decision of the RO, they can only appeal it through an elaborate system fraught with delays, in which only the veterans have deadlines and time constraints, while the VA has none;
• The number of pending rating-related claims increased from 337,742 in January, 2005 to 400,450 in April, 2008 (and has skyrocketed since);
• For veterans who pursue an appeal to completion, it takes an average of 1,419 days, almost four and half years, to receive a decision;
• Thousands of veterans die while their appeals are pending. When an appellant dies, the appeal is extinguished and is not counted in the statistics for wait times;
• Although a benefit award is generally retroactive to the date of the claim, the veteran is not entitled to interest.
See Memorandum of Decision (June 25, 2008) for more.
The gallery in the courtroom was nearly as busy as counsels’ tables, with veterans, reporters, court staff, law students and personnel supporting the legal teams streaming in and out. On the second day of trial, when Plaintiffs’ expert witness in suicidology was testifying about the inadequacy of VA’s assessment process of suicidal veterans, a female veteran in the gallery erupted in protest.
“Tell the truth, Doctor. Over-deployment! …What the hell is it going to take to wake this country up?” She was escorted out by federal marshals.
The Court issued its 82-page decision two months later. Although it was “clear to the Court” that we had proven the facts of our case, “the remedies to the problems, deficiencies, delays and inadequacies complained of are not within the jurisdiction” of federal courts—only “Congress, the Secretary of the Department of Veterans Affairs, the adjudication system within the VA and the Federal Circuit” have that power.
We immediately appealed to the Ninth Circuit Court of Appeals (No. 08-16728). “At stake in these proceedings,” we wrote, “is whether a federal agency may ignore its constitutional and statutory obligations to our Nation’s veterans, unfettered by any form of judicial oversight.” The VA was being held accountable for neither its harmful actions nor its negligent inactions.
Briefing went on for months. Oral argument took place on August 12, 2009 before a 3-judge panel in San Francisco. C-Span was there to film the proceedings in a packed house. On May 10, 2011, the Court issued its 103-page decision affirming in part, reversing in part, and remanding the case to the district court. Everyone now agreed that veterans were dying in droves and the VA was a big part of the problem, but there was no agreement about how to fix it. “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….”
Chief Judge Kozinski’s dissent began: “The majority hijacks the Department of Veterans Affairs’s mental health treatment and disability compensation programs and installs a district judge as reluctant commandant-in-chief. That judge must now decide ‘what procedural protections are necessary.’…The majority dramatically oversteps its authority, tearing huge gaps in the congressional scheme for judicial review of VA actions.” The battle in the Ninth Circuit continued while we celebrated our temporary victory. The phones rang with emotional calls from veterans.
The Government petitioned for rehearing in July, this time before all eleven judges. On December 13th not only did veterans and the usual suspects fill the courtroom for oral argument, but Judge Conti and his clerks attended.
The Ninth Circuit subsequently overturned its earlier ruling. “We conclude that we lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach….” Judge Schroeder dissented, quoting from Joseph Heller’s Catch-22. The case was remanded with instructions to dismiss. And when Judge Conti retired in October, 2015, after 45 years on the bench, he said that the only case he was ever sorry to have been affirmed on was ours.
We filed a Petition for Certiorari with the U.S. Supreme Court in September, 2012 (No. 12-296) without success. The lawsuit ended, but not the suffering we fought so hard to abate. More than 1,000,000 veterans had disability claims pending in April, 2008 and, according to Paul Sullivan, Deputy Secretary of the California VA, that number has not yet declined.
Gordy Erspamer once famously said, “I’ve done a lot of helping individual veterans, but that only gets you so far. I could spend a thousand lifetimes, I could be a thousand lawyers, and still not scratch the surface.”
Published in the Spring 2016 issue of The National Paralegal Reporter, and republished here with permission.