By Brenda L. Mooney

SAN FRANCISCO — The full 9^th U.S. Circuit Court of Appeals has ruled that it lacks jurisdiction to overhaul VA’s mental-health system, as requested in a class-action suit claiming that VA does not provide mental healthcare in a timely factor.

In its latest decision in the case Veterans for Common Sense (VCS) vs. Eric K. Shinseki, a 9^th circuit majority of 10-1 said the task of addressing problems with VA’s mental healthcare is up to Congress and the administrative branch of government.

A ruling last summer by a 9^th Circuit three-judge panel  said veterans could look to the courts to seek relief from their claims that VA failed to provide adequate or timely care to veterans in need. That raised questions about the appropriate role of the three branches of the U.S. government.

"VCS's complaint sounds a plaintive cry for help, but it has been misdirected to us," Judge Jay Bybee wrote for the 10-member majority. "As much as we may wish for expeditious improvement in the way the VA handles mental healthcare and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it."

To underscore his point, Bybee quoted Abraham Lincoln's second inaugural address, saying, "Congress and the president are in far better position 'to care for him who shall have borne the battle and for his widow and his orphan.’”

The 9^th Circuit court also ruled that, if judicial review of veterans’ benefits is necessary, it should be done by the U.S. Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

The advocacy groups Veterans for Common Sense and Veterans United for Truth (VUFT) filed the lawsuit in 2007, claiming that delays in mental healthcare too often result in the suicide of the soldier seeking help, which violated veterans’ rights to due process.

According to the lawsuit, as many as 18 veterans commit suicide every day, many waiting for a mental-healthcare referral that can take months. From October 2007 to April 2008, 1,467 veterans died while their appeals were pending, court documents claimed.

“The message that this decision sends to the VA is that it can continue its unconstitutional practices unchecked by the power of the courts,” Sandy Cook, VUFT’s vice-chair said in a statement. “It would not be an exaggeration to call it a carte-blanche approval for the VA to continue to mishandle, mistreat and stiff our veterans.”

Paul Sullivan, VCS’s former executive director, suggested the case was not over, despite the ruling that courts have no jurisdiction over the matter.

“We will see this case to the end,” he said in a statement. “We owe it to every veteran who has died in the service of our country or who now suffers from the signature diseases of the Iraq and Afghanistan wars, post-traumatic stress disorder and traumatic brain injury.”

The case can and will be appealed to the U.S. Supreme Court, said plaintiffs’ attorney, Gordon Erspamer of San Francisco-based Morrison & Foerster to reporters.

The earlier decision that was overturned, issued by the three-judge panel in 2011, said the courts could impel VA to act because, "neither Congress nor the executive has corrected the behavior that yields these constitutional violations."

The sole dissenter in the full court decision, Judge Mary Schroeder, argued that, jurisdictional arguments aside, the courts should act because the status quo is unsustainable.

"The majority thus leaves millions of veterans — present, past  and future — without any available redress for claims that they face years of delay in having their rights to hard-earned benefits determined," wrote Schroeder. "No one could think this is just or what Congress intended."

United States Court of Appeals for the Ninth Circuit

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