By Russ Bleemer

In the latest phase of an issue CPR has been following closely for almost a decade, the American College of Trial Lawyers filed suit last month against the U.S. Department of Veterans Affairs in a renewed move to improve an agency appeals process long beset by delays that prevent military personnel from getting timely benefits determinations.

Last week, President Obama trumpeted improvements in access to benefits, and cutting veterans’ incidents of homelessness.

But on the appeals issues, the President’s report conceded that the process is “broken,” a “state of affairs [that] is unacceptable and is failing veterans.”

The Backlog Bludgeons

The appeals backlog is a persistent problem. It is a different concern than the delays in medical care, which was the principal subject of a post-White House report analysis in the New York Times Saturday. Nor does the appeals backlog at the VA address the department’s responsibility for addressing veterans’ homelessness, an editorial also appearing over the weekend.

In fact, the new case, which is filed in the Washington, D.C.-based U.S. Court of Appeals for Veterans Claims, and requests mandamus relief, relies in part on a panel decision by the Ninth U.S. Circuit Court of Appeals matter that confronted the problem directly in 2011.  The California suit resulted in an order that the VA submit to a federal court a new process that would alleviate the backlog in the stalled claims and appeals matters.

But the panel decision was reheard en banc by the full Ninth Circuit, which overturned it. The opinion acknowledged the problems but did not dispute the constitutional findings. It cited jurisdictional issues—some weighted in separation-of-powers arguments, and most because of appropriateness of the claims for the U.S. Court of Appeals for Veterans Claims–in overturning the original decision. Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012)(en banc)(available for download at http://bit.ly/2b64YKo). The U.S. Supreme Court denied certiorari.

The July 21 U.S. Court of Appeals for Veterans Claims filing–in which the American College of Trial Lawyers represents a class of veterans whose benefits requests have been denied by the VA and whose appeals have not been processed in a timely manner–relies in part on the finding in the original Ninth Circuit decision that the delays violate the veterans’ constitutional due process rights.

Fellows in the Washington, D.C.-based trial lawyers’ group prepared the petition with two partners in the Atlanta office of King & Spalding LLP, and a partner in Washington, D.C.’s Williams & Connolly LLP, according to a press release.

“Thousands of veterans die before their appeals are decided,” states the petition.  It says that benefits appeals now take nearly four years to reach a decision, a situation the filing calls “disgraceful.”

CPR on the Backlogs

The CPR Institute addressed the appeals issue, which had been a subject of controversy for two decades, in a “Why Not ADR? Burdened by Backlogs, the System That Deals with Veterans’ Disability Claims Needs Help,” 25 Alternatives 131.  That September 2007 Alternatives article by Richard M. Rosenbleeth, a retired partner in Philadelphia’s Blank Rome LLP, who works as an arbitrator, was the first to suggest that conflict resolution processes should be deployed to alleviate the strain on the benefit appeals process.

Rosenbleeth proposed that a claims facility be established to swiftly address the languishing appeals claims.

Rosenbleeth followed the issue and returned to it in Alternatives pages repeatedly over the years. The CPR Institute on its website, as well as Alternatives and the national media, covered the Ninth Circuit case filings in 2009 through the 2012 en banc decision.

Key articles, available at the links and in full text on Lexis and Westlaw, included:

• A piece in the July/August 2011 Alternatives (second page of the issue)—“‘This Is Their Wake-Up Call’: Ninth Circuit Trashes the Veterans’ Administration Claim Processes,’” 25 Alternatives 130 (July/August 2011)—discussing the case at length and analyzing the initial victory that became a basis of the new July Veterans Claims Circuit Court of Appeals filing.

• When the Ninth Circuit en banc rehearing was granted in November 2011, The Wall Street Journal’s Law Blog announced the order and linked to the CPR Institute website coverage.

Rosenbleeth explains that the current suit follows years of approaches to various legislators, the VA’s Board of Veterans Appeals, and a veterans’ organization requesting pursuit of a post-Shinseki solution, including ADR processes. The outreach efforts, Rosenbleeth says, were conducted by Fellows of the American College of Trial Lawyers, including himself; John A. Chandler, a partner in the Atlanta office of King  & Spalding, and J. Denny Shupe, a partner in Philadelphia’s Schnader Harrison Segal & Lewis LLP.

“Finally,” says Rosenbleeth, “the College decided a suit was necessary.”

Given the broad nature of the mandamus request in the new suit, and the U.S. Court of Appeals for Veterans Claims’ ability to order innovative relief—as well as the renewed political focus on the broader VA issues in an election—the new American College of Trial Lawyers suit may provide an opportunity for improving the benefit appeals process.

“What is needed is broad reform, and the problem is only going to get worse until Congress acts,” noted the White House’s report last week, “reiterating [President Obama’s] call for comprehensive legislative modernization of the appeals process.”  The report concluded, “Congress should act on this legislation without delay–our veterans cannot afford to wait any longer.”

The Veterans Claims appeals court has not yet scheduled further proceedings on the new suit.

The author edits Alternatives for the CPR Institute.