Monday, January 7, 2013


The U.S. Supreme Court has announced that it will not hear arguments in an historic lawsuit filed by two veterans groups in 2007 against the Department of Veterans Affairs (VA). The lawsuit, Veterans for Common Sense v. Shinseki, demanded that the VA fix its broken mental health care system. 

Last May, a federal appeals court in California voted 10–1 to dismiss the case, ruling that only Congress or the president has the authority to direct changes on how veterans are treated. The decision overturned a 2–1 ruling in 2011 by the same court, which said that the department’s “unchecked incompetence has gone on long enough,” and permitted the plaintiffs to ask a federal judge to order changes in the VA. 

The VA appealed that ruling to the larger panel, which curiously reversed the original ruling.
In September, the two plaintiffs, Veterans for Common Sense (VCS) and Veterans United for Truth (VUFT), filed a petition asking the Supreme Court to hear the case. The Court declined that request late Friday without further comment.
Now that the suit has been dropped, veterans advocates say veterans will have no legal recourse when they are unable to get prompt mental health care or are unable to get their disability claims processed in a timely manner. 

"The Supreme Court declared that a corporation is a person, but when a suicidal veteran needs emergency health care, the VA can turn that veteran away and there's nothing the veteran can do about it," says Paul Sullivan, a veterans advocate who works at Bergmann & Moore, a law firm that assists disabled veterans with their VA claims. 

Sullivan, who once worked at VA and who was largely responsible for filing this lawsuit six years ago, says the Court’s decision is “very disappointing.”

Charles Sheehan-Miles, a Gulf War veteran and veterans advocate, explained on the VCS website that this lawsuit centered on one key issue: whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in VA’s provision of mental health care and death and disability compensation. The lawsuit was hugely significant because, had it been successful, it would have enabled veterans to challenge these delays for the first time in federal court.

As I reported for The Daily Beast last year, documents the two veterans groups presented during the original two-week non-jury trial in 2008 showed that it took the VA an average of nearly four and 1/2 years to review veterans' health-care claims, that more than 1,400 veterans who’d been denied coverage died in one six-month period while waiting for their claims to conclude, and that 18 veterans per day were committing suicide.

The plaintiffs also submitted emails between VA executives that they said confirmed the agency’s plan to suppress the number of attempted suicides by veterans who were receiving VA care.

"Shhh!" began a Feb. 13, 2008, email from Dr. Ira Katz, a VA deputy chief. "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?"

In 2007, a year before that email, I initiated a Newsweek cover story that addressed the VA’s failure to properly treat ailing veterans because of a massive backlog of claims, lack of staff, and a bureaucracy that increased the stress many former troops already felt. Nearly six years later, despite sincere efforts by the Obama Administration, the situation for Iraq and Afghanistan veterans has evidently gotten worse in a number of vital areas.

For example, according to Sullivan, the backlog of compensation claims new exceeds 1 million. Waiting times are longer, too, Sullivan says.

The veterans groups that filed this groundbreaking lawsuit appeared on 60 Minutes four years ago discussing the long waits veterans face when seeking VA assistance. For years, VCS has led the fight for reform at the VA and was instrumental in getting the VA to streamline disability benefits for PTSD.

The veterans groups that filed this suit also pushed for the creation of the Suicide Prevention Hotline which has saved more than 23,000 veterans' lives. Also thanks largely to VCS and VUFT, veterans now get five years of free healthcare, and VA has shortened veterans' disability claim forms from 26 pages to six pages.

But the Supreme Court’s decision comes as a major disappointment to many veterans advocates. A statement just released by VCS said the following:

"VA remains mired in crisis, and veterans will continue fighting to reform VA so that no veteran waits for VA healthcare or benefits.  We are deeply disappointed the Court did not hear the urgent plea of suicidal Veterans who face delays of months, and often years, seeking VA assistance. Although significant improvements were made in some areas within VA, such as a suicide hotline set up after our lawsuit that rescued 23,000 distraught veterans, the nation’s second largest department remains in deep crisis due to decades of underfunding and a lack of significant Congressional oversight of VA’s $140 billion per year budget." 

Although veterans lost on a technicality, VCS states, "no one disputes the number of preventable veteran deaths associated with VA’s negligence. Last year, the families of nearly 20,000 veterans were paid disability benefits after the Veterans died. A shocking 18 veterans commit suicide every day. More than 12,000 veterans call VA for suicide prevention each month. During our nation’s worst economic disaster in 80 years, more than 1.1 million veterans still await VA disability claim decisions. Of those, 900,000 cases wait an average of nine months for a new or re-opened claim decision, plus an additional 250,000 cases wait four more years for an appealed claim decision. VA’s Inspector General reported in 2012 that VA makes errors in approximately 30 percent of VA’s claim decisions."  

While our veterans wait, VCS concludes, "they remain unable to pay their mortgage or rent, and face great challenges feeding their families. Let us hope VA Secretary Eric Shinseki and Congressional leaders make sure VA has the funding, staffing, laws, regulations, training, and oversight urgently needed so no more veterans die while waiting."  


  1. Jamie:
    This sounds a lot like the plot from a John Grishom novel a few years ago called THE RAIN MAKER. In the story, there is a large insurance company, Great Benefit, that has a policy to never pay a claim, waiting instead for the claimant to simply die. Of course, the story is fiction but what's happening to our veterans, with the assistance of the Supreme Court, is all too real. It sounds like the bureaucrats at VA are big fans of John Grisham. Absolutely shameful. However, we have to keep up the fight. Great story.

    1. Thanks John. Very good analogy.

    2. John Cook: What you wrote is correct. Sad, tragic, and outrageous. Yet True. Paul Sullivan, Veterans for Common Sense.

    3. Paul:

      Thank you, sir. I'm a big fan of Jamie Reno and he is a true friend of our military veterans. Unfortunately, we always throw our veterans under the bus after they lay it all on the line during periods of crisis. It has been this way for a long time, but no one, in my humble opinion, has captured this bureaucratic attitude better than Rudyard Kipling is his famous poem "Tommy."
      The last few lines of this classic poem can never be repeated enough:
      "For its Tommy this and Tommy that and 'Chuck him out the brute!'
      But its 'Savior of the Country' when the guns begin to shoot;
      And its 'Tommy this and Tommy that' and anything you please;
      And Tommy ain't no blooming fool;
      You bet that Tommy sees!"
      I sincerely hope that I have quoted Mr. Kipling correctly because this is all from my imperfect memory of many years ago. These lines were written in the late 19th century explaining how the population of England treated their military veterans. However, it could just have easily been written today about America. When we need them, we praise them and when we don't we discard them. And they know the score, just as Tommy did, because he speaks for all veterans. However, as long as there are men still standing such as you and Jamie Reno, we have to keep up the fight.
      Best regards,
      John Cook

    4. Thanks very much for the kind words, John. Kipling is smiling down on you because you indeed quote him accurately: