Veterans for Common Sense v. Shinseki

they to add amend if wish leave to further cause of express IDEA’S under the

a claim their costs recover Plaintiffs shall action. appeal. part, AFFIRMED REVERSED part, REMANDED. SENSE, FOR COMMON

VETERANS nonprofit organi- of Columbia District Truth, zation; Veterans United nonprofit organiza- Inc., a California tion, representing their members and similarly situat- of all veterans

a class ed, Plaintiffs-Appellants, Secretary SHINSEKI, of Veter- Eric K. Affairs; Depart- United States ans Affairs; Steven L. of Veterans ment Chairman, Keller, Acting Board of Appeals; Allison A. Hick- Veterans’ Secretary, ey, Bene- Veterans Under Administration; Bradley G. fits Mayes, Director, Compensation Petzel, Service; A. Robert

Pension Secretary, Health Veterans Under Willimon, Administration; Ulrike Manager, Center Service Office, Regional Depart- Oakland Affairs; United of Veterans ment America, Defendants-Appel- States lees.

No. 08-16728. Appeals, States Court United Ninth Circuit. En Argued and Submitted 13, 2011. Banc Dec. 7,May Filed KOZINSKI,

Before: ALEX Chief SCHROEDER, M. Judge, MARY THOMAS, R. P. SIDNEY SUSAN GRABER, McKEOWN, M. MARGARET WARDLAW, KIM JOHNNIE McLANE RAWLINSON, BYBEE, B. JAY S. CALLAHAN, CONSUELO M. SANDRA IKUTA, SMITH, RANDY S. and N. Judges. Circuit BYBEE; Opinion by Judge Dissent Judge SCHROEDER.

OPINION

BYBEE, Judge: Circuit war, many After a decade of of our returning physical veterans are home with psychological require wounds that competent daunting care. Faced care, providing task well as adjudicating the claims of hundreds disability seeking thousands of veterans benefits, Department of Veterans Af- (“VA”)1 struggling provide fairs compensation care and that our veterans Ryan P. Hassa- Erspamer, Gordon G. See, e.g., deserve. Review Veterans’ Stacey Sprenkel, M. Morrison & nein Processing: Claims Are Current Efforts CA; LLP, Francisco, Foerster San Comm, Working? Plearing the S. Before Maynard, & Foerster Deanne E. Morrison (2010) Affairs, 111th Cong. on Veterans’ DC; LLP, Washington, Sidney M. (statement Walcoff, Acting of Michael Un- Disability Wolinsky Elsberry, and Ronald Benefits, Secretary Dep’t of der U.S. CA, Advocates, Rights Berkeley, for the Affairs) (“Secretary Shinseki, Veterans plaintiffs-appellants. (VBA), Benefits Administration Veterans leadership fully and the entire VA share Scarborough, Charles W. United States Committee, Congress the concerns of this Justice, Division, Ap- Department of Civil whole, Organiza- as a the Veterans Service Section, D.C., Washington, for the pellate (VSOs), larger tions Veteran communi- defendants-appellees. ty, public regarding and the American accuracy disability timeliness and bene- processing.”). fit claims nonprofit organizations, Two for Common Sense and Veterans United Act, reorganized Congress the Veterans erans Affairs Pub.L. No. here, (1988). may executive Stat. 2635 As used "VA” Administration as a cabinet-level Depart- Department predecessor, department redesignated refer to the and its it as the Department Veterans Administration. Veterans Affairs. of Vet- ment of “VCS”), (collectively adjudication us for Truth ask to transform the of veterans’ remedy delays contentious, of mental sys- benefits into a adversarial health care and the of service- system tem—a that Congress actively has disability compensation connected legislated preclude. See Walters v. complaint by the VA. VCS’s leaves little Survivors, Nat’l Ass’n Radiation it affording doubt VCS the relief 305, 323-24, require would the district court to seeks (1985). L.Ed.2d 220 The Due Process manner in which the overhaul the system. Clause does not demand such a adjudicates mental health care and vides As much as we as citizens are concerned claims for benefits. VCS would have the plight with the seeking of veterans court, among things, other order prompt provision of the health care and implementation procedures of new for law, they benefits which are entitled handling requests, mental health care cre- judges may jurisdic- we not exceed our appeals process ate accelerated for tion. We conclude that the district court claims, claims-adjudication and convert the jurisdiction lacked to resolve VCS’s claims process proceeding. into an adversarial system-wide for implementation of the jurisdiction We conclude that we lack plans, VA’s mental health care as well as Congress, afford such relief because in its request procedures VCS’s for intended to discretion, place judicial has elected to re- delays address provision of mental provision view of claims related to the of health care. similarly We determine beyond veterans’ benefits our reach and the district court lacked to con- within the purview exclusive of the United sider statutory process and due States Court of Appeals for Veterans challenges delays system in the Appeals Claims and the Court of for the adjudication. conclude, We do how- §§ Federal Circuit. See 38 U.S.C. ever, that the jurisdic- district court had 7252, 7292; see also Yakus v. United tion to consider VCS’s claims related to States, 414, 443, 321 U.S. procedures in Region- (1944). L.Ed. 834 “Without al Offices and that the district court prop- the court proceed cannot in any all erly denied those claims on the merits. cause. power Jurisdiction is to declare the We therefore affirm the district court in law, exist, and when it ceases to part, in part, reverse and remand with function remaining to the court is that of instructions to dismiss the case. announcing the fact dismissing McCardle, (7 parte cause.” Ex 74 U.S. I. AND FACTUAL PROCEDURAL Wall.) 506, 514, (1868). 19 L.Ed. 264 We BACKGROUND2 conclude that the majority of VCS’s claims approximately must be There are jurisdiction. dismissed for lack of 25 million vet- And and, where we do erans in the May have to con- United States as of claims, sider VCS’s we conclude that between 5 and 8 million of those granting requested VCS its relief would veterans were enrolled AVA.3 opinion Parts of this are drawn from the third of are whom enrolled for health care three-judge panel majority’s opinion. The with the VHA and of whom 3 million receive panel's contribution should be noted and is disability benefits. See Nat'l Ctr. for Veterans appreciated. Statistics, Analysis of VA Benefits & Health 30, 2010), (July Care Utilization available at 3. The district court found these facts. We http://www.va.govA/ETDATA/Pocket-Card/4X judicial take figures notice of current official 6_summerl 0_sharepoint.pdf. veterans, provided by the VA: 23 million ¶¶ 31, veterans, delayed care. Id. many legedly result number of significant challenges 277. VCS opera- also recently returned from have whom procedures expedite for veterans to from lack Afghanistan, suffer Iraq tions ¶¶31, that care. Id. 277. VCS therefore disabilities, and therefore service-related declare, among asked the district court to from the Veterans health care seek mental that the (“VHA”) things, other lack of and dis- Health Administration delays provision in the remedy of medical the Veterans ability compensation from treatment process. care and violates due (‘VBA”).4 Administration Benefits ¶¶31, 258-60. also seeks to en- VCS A. The Suit from join permitting protracted the VA delays provision of mental health nonprofit organizations, two compel implement and to care VHA for Common Sense Veterans im- governmental recommendations Truth, in the North- filed suit United proving the of mental health behalf of District of California. On ern ¶¶ 31, 277. care.5 Id. themselves, members, putative their post-traumatic of veterans with Second, class delays VCS VBA (“PTSD”) eligible for disorder adjudication stress and the resolution of disabili- services, and veterans receiving medical claims Ad- ty-compensation under both the (“APA”) receiving for or service-connected applying Procedure Act and ministrative benefits, sweeping disability VCS seeks Process Fifth the Due Clause of the ¶¶ injunctive 31, 145-83, re- declaratory and relief. Such Amendment. Id. 277. VCS warranted, the alleges, VCS because lief is asserts of those and handing claims, of mental health care begins which VA’s one VA’s deprives disability proceeds and Regional through service-related Offices Due property violation of the VCS of Veterans’ the Court of Appeals, Board (‘Veterans and Clause of the Constitution Appeals Process for Veterans Claims duty Court”),6 court, statutory provide the VA’s Article violates an I 38 U.S.C. 7266(a), timely disability Circuit, medical care and benefits. §§ and Federal 7292(a), relief on specifically seeking § disavows is plagued by VCS unrea- U.S.C. veteran, in- but delays behalf of individual in a functional sonable result delays 31, 145-83, in the challenges “average” stead Compl.lffl denial of benefits. and of mental health care provision 277. therefore seeks both declarato- VA’s VCS ¶¶ 12, disability Compl. remedy benefits. 38-39. ry injunctive those relief ¶ briefly summarize claims. 277. delays. We Id.

First, duty to respect Finally, to the VHA’s VCS the constitution- challenges care, ality practices veterans with mental health of numerous VBA provide cedures, including that al- of trial-like procedures VHA absence VCS improve VA is divided three tions intended to the VA’s 4. The into branches: Administration, Benefits Veterans Veterans mental health care to veterans. services Administration, Cem- Health and the National etery Administration. initially called 6.The court as established was Appeals. States the United Court of 5. Those recommendations are found changed name was later the Veterans Strategic Plan VA’s 2004 Mental Health Programs Enhancement Act of 1998 ("Plan”) and a June 2007 memorandum from Appeals Claims. Court of for Veterans then-Deputy Secretary for Health Under 105-368, 112 Stat. Pub.L. No. Management, Feeley. Operations and William specific set recommenda- Both documents out Regional provide timely at the failure to men- VA’s Offices. and effective ¶¶ Id. 262-63. VCS also seeks tal health care because VA’s health enjoin prematurely deny- the VBA from system appropriate care reflected “an bal- and other dis- ing PTSD service-connected ance safeguarding between veteran’s ¶¶ 31, compensation ability claims. permit- interest in medical treatment 277.7 ting overly treatment medical without bur- procedural protections.” densome Veter- Denies B. The District Court VCS Relief ans, F.Supp.2d at in large After the district court denied respect With the VBA’s administra- dismiss, part VA’s motion to VCS re- disability tion compensa- of service-related injunction quested preliminary on its tion, mental health claims. The court the district court denied VCS relief evidentiary hearing, but held deferred grounds both U.S.C. injunction, ruling preliminary on the in- precluded its review. merging request stead with a bench that, reasoned because issue ... of “[t]he

trial on the merits that would address all adju- whether a claim veteran’s benefits] of VCS’s claims.8 substantially delayed dication has been will a seven-day The district court held specific often hinge on of that facts veter- and, later, bench trial two months issued claim,” an’s it lacked under 38 Decision, comprehensive Memorandum 511(a) to review the causes of Findings Fact and Conclusions Law. delayed adjudication. Id. at 1083-84. It See Veterans Common Sense v. Peake likewise found that ordering VBA to (“Veterans ”), F.Supp.2d by remedy delays implementing new pro- (N.D.Cal.2008). The district court denied “invariably implicate cedures would VCS’s various claims and concluded that regulations,” may review of which be con- ordering requested by the relief VCS only ducted the Federal Circuit under would draw the district court into resolv- 38 U.S.C. 502. Id. at 1084. ing provided when and how care is role—a however, court, reached the’ merits of equipped it was not to undertake. Id. disability-based claims, VCS’s but conclud- First, at respect 1080-82. ed that delays neither in the VBA’s Re- care, VHA’s provision mental health gional adjudication of disability- Offices’ rejected district court VCS’s be- claims, related nor the lack of trial-like discrete, cause identify VCS failed to a protections raising for veterans such agency final action that the VA was re- claims, was unreasonable the APA under quired 1082-83; take. Id. at see 5 process. due violative of at Id. 1085-86. 706(1); U.S.C. see also Norton v. S. The district court therefore denied VCS’s Alliance, 55, Utah 64, Wilderness 542 U.S. request permanent for a 2373, (2004). injunction and 159 L.Ed.2d 137 relief, declaratory Similarly, rejected granted judgment the district court due process challenging VA’s favor of the VA. Id. at 1092. complaint, brought peal, its VCS other chal- we thus address those claims lenges procedures, including VAto a chal- preserved appeal. that VCS has on lenge proce- to the absence of class action claims, dures of benefits schedule, objected 8. VCS to the trial as well challenge arguing prac- well as that VA discovery as the limitations the district deny tices veterans access to the courts. imposed, and the district court over- VCS, however, Compl.lfil ap- 261-63. objections. ruled those pears have ap- abandoned these claims on (1812) court, (“[Only] the Su L.Ed. 259 panel A of this appealed. VCS constitu- jurisdiction on the de majority, possesses 2-1 reversed preme Court[] Common constitution, claims. Veterans tional immediately from the rived for (9th Shinseki, 845, 878 v. Sense cannot legislative power and of which Cir.2011). the district panel affirmed it. All other Courts created deprive proce- conclusion that the VA’s court’s juris no possess Government general due Regional at its Offices satisfied dures by the given but what is them diction granted process. 887-88. We them, and can be vest that creates power petition rehearing for en banc. Vet- VA’s power what the ceded to none but ed with erans Common Sense Shinseki will authorize general Government Cir.2011). (9th F.3d 1033 confer.”). Article Ill’s “federal them to jurisdiction” statutorily con question II. JURISDICTION on federal district courts ferred may address VCS’s claims on Before we which cites as the VCS merits, govern we must consider the jurisdictional court’s of the district source argument that the Veterans’ Judi ment’s provides: That section “The authority. Act, Pub.L. No. cial Review div. jurisdic original shall have district courts (1988) (“VJRA”), A, codified Stat. arising all civil under the tion of actions us deprives in Title various sections Constitution, laws, the Unit or treaties of over these claims. See Steel But the ed States.” 28 U.S.C. Env’t, a Better 523 U.S. v. Citizens Co. are vested with 140 L.Ed.2d 210 fact that federal courts 83, 94, 118 S.Ct. (1998) must have that a court (holding “all civil actions” such over merits). first reach the We jurisdiction to may not mean that all federal courts does history and Con of the VJRA review exercise over all such civil ac judicial in long-held concern with gress’s grants tions. The Constitution also to Con handling into the VA’s veterans’ trusion gress power to control federal court then consider requests for benefits. We jurisdiction through Exceptions, “such in which courts have con way Regulations Congress such as the under that strued the VJRA Const, III, 2,§ make.” U.S. art. cl. shall Adecisions, precludes review of V 38 2; States, 411 see Patmore v. United U.S. § 511. U.S.C. 389, 1670, 36 L.Ed.2d 342 (1973) is not re (holding Congress A. over Veterans Jurisdiction Benefits to vest inferior federal courts “with quired judicial Article III confers “[t]he to jurisdiction all the it was authorized supreme Power of the United States” on III”). Congress under Art. And bestow as the court and “such inferior Courts obligation jurisdiction no to confer under may ordain Congress from time to time equally; in upon inferior federal courts Const, Ill, § U.S. art. 1. and establish.” deed, just no court “can assert a claim to courts “judicial The Power” vested such jurisdiction exclusively conferred on anoth Cases, in Equity, to all Law and “extend[s] Sill, er, withheld from all.” Sheldon v. Constitution, the Laws arising under this (8 How.) 441, 449, 12 L.Ed. 1147 49 U.S. States, of the and Treaties made.” United (1850) any (“Congress may withhold from Ill, 2,§ III is not art. cl. 1. Article jurisdiction any of of court of its creation however, jurisdiction self-executing, so controversies. Courts the enumerated on an depends inferior federal courts of jurisdiction can have no created statute See United statutory grant. affirmative confers.”). (7 Cranch) Hudson, 32, the statute but such as 11 v. States see, Circuit, e.g., Tracy to vet- the D.C. v. Glea- involving benefits owed In cases son, 469, con- erans, Congress created a scheme 472-73 (D.C.Cir.1967), has claims of “procession over where ferring exclusive decisions ... ‘sig- nificantly affecting to federal the preclusion narrow[ed] veterans’ benefits some stat- ” courts, all federal its denying application while other ute’ limited to bar of any jurisdiction over such claims. review related filing courts to initial Jones, of claims. Larrabee ex statutory is the rel. of that scheme The source Re- Note, Judicial Review Act of 1988. To F.2d at Judicial (quoting Veterans’ VJRA, Allegedly view Actions import Ultra understand Vires consider the Veterans’ Does 38 affects our Administration: how it 211(a) Review?, § here, helpful it is to examine Preclude (alteration history judicial 579, (1987) review of deci- VA L.Rev. Fordham sions. original)). In response D.C. Cir- “fairly cuit’s tortured construction” of the History

1. of Judicial Review limitation, Congress jurisdictional in 1970 discussion be reemphasized Our will brief because the “clear” intent its judicial ... history “exemption judicial review of decision- be all from review making inclusive,” is a short Congress one. estab- and it amended the statute to 3,1930, “provide lished the VA in Act July except for certain contractu- 863, 1, benefits, 1016, ch. 1016. Three al Stat. the decisions of the Adminis- later, years judicial Congress prohibited any question trator of law or fact under law Act review the VA’s decisions. administered the Veterans’ Ad- 20, 8, 1933, 3, 5,§ 9 ministration” of Mar. ch. 48 Stat. shall unreviewable. (“All H.R.Rep. the Adminis- No. re- (1970), decisions rendered 91-1166 at 10 title, printed regula- under ... trator this or the 1970 U.S.C.C.A.N. 3730- thereto, pursuant 211,9 be fi- tions issued shall result was 38 U.S.C. questions precursor nal all of law and conclusive on which we construe fact, and official or court of no other here. States shall have United later, years Four Supreme Court decision.”); see also ... review such interpreted § 211 in of an the context States, v. 571, 587, Lynch United 292 U.S. protection equal challenge to statutes re- (con- (1934) 78 L.Ed. 1434 S.Ct. Johnson lated veterans’ benefits. struing possi- statute to “remove the Robison, 415 U.S. S.Ct. relief’). judicial bility of has Congress (1974). Supreme L.Ed.2d 389 Court “consistently judicial precluded review precluded only held review of thereaf- veterans’ benefits determinations” in the administration decisions “that arise Derwinski, v. Larrabee ex rel. Jones ter. stat- a by the Veterans’ Administration (2d Cir.1992). 1497, 1499 Id. ute providing benefits veterans.” added). time, however, 367, exceptions Over to the 94 (emphasis at S.Ct. 1160 preclusion provision began appear. Declaring § to elimi- construing 211 development notably in This occurred most all constitu- nate federal court review of provided: any 9. section or That conclusive and no other official power court of the United States shall have any decisions of the [T]he Administrator or review decision such question of law fact law ad- or under by an nature or action in the of mandamus ministered the Veterans’ Administration providing their otherwise. benefits veterans and 211(a) (1970). dependents § and or survivors shall be final 38 U.S.C. in judiciary’s involvement “technical leg- to veterans’ tional questions decision-making.” H.R.Rep. No. raise “serious VA See would islation 211,” constitutionality of 100-963, 20-21, (1988), concerning reprinted at avoidance the constitutional invoking 5802-03, 5782, and 5809-10. U.S.C.C.A.N. § 211 to al- doctrine, construed the Court judiciary from In order to dissuade a court review federal low language that Con- ignoring explicit “the itself. constitutionality of the statute gress isolating used decisions 366-67, The Robison at S.Ct. judicial scrutiny,” from id. Administrator that district concluded therefore Court 5802, 21, Congress at at 1988 U.S.C.C.A.N. a direct jurisdiction to consider courts had the internal review mech- overhauled both affecting veter- challenge to statutes facial 211 in the VJRA. Pub.L. No. anism 367, Id. at 94 S.Ct. ans’ benefits. 100-687,102 Stat. 4105. Robison, years deciding after Fourteen The VJRA made three fundamental jurisdic revisited the Supreme Court changes and statutes in Traynor v. limitations of tional First, affecting review of VA decisions. 1372, 535, Turnage, 485 U.S. placed responsibility for review- the VJRA (1988). There, held the Court L.Ed.2d 618 Regional made Offices ing decisions VA from § 211 not bar federal courts did Appeals the Board of in a Veterans’ regulations whether the VA’s reviewing court, I States new Article United §with 504 of the Rehabilitation conflicted Appeals Court of for Veterans Claims. 38 794, 1973, re which Act of 29 U.S.C. 7251, §§ Congress 7261. As ex- programs not discrimi quires that federal plained, the creation of the Veterans Court solely handicapped individuals against nate provide indepen- was “intended to a more Traynor, handicap. their because of by body review which is not bound 108 S.Ct. 1372. Section dent U.S. at said, 211(a), law, “insulates from re the Court by the Administrator’s view of fact ... of law and made view decisions clearly perceived more as one will be applying particular provi interpreting deciding function which has as its sole particular to a set of of that statute sion claims in accordance with the Constitution facts.” Id. at 108 S.Ct. 1372. H.R.Rep. laws of the United States.” “special had no noted that the VA Court at No. 1988 U.S.C.C.A.N. validity of its assessing expertise “provide[d] claim- 5808. The statute also passed “a later statute against regulations” an avenue for the review VA ants with application.” Id. general that would otherwise have been decisions that per doubted 1372. The Court S.Ct. prior veterans-relat- unreviewable” under would inter federal court review mitting Brown, legislation. ed Beamon agency or burden the fere with the VA (6th Cir.1997). time-consuming litiga “expensive and Congress indicated that the Veterans (internal marks omit quotation tion.” Id. authority extend to “all Court’s would ted). to “seek[ ] The Court invited under laws ad- questions involving benefits “expe if Congress” relief from appropriate include ministered the VA. This would 544-5, at proves rience otherwise.” Id. factual, ques- legal, and constitutional 1372. 100-963, at H.R.Rep. No. tions.” Act Judicial Review added). 2. The Veterans’ (emphasis at 5786 U.S.C.C.A.N. end, Congress conferred on To that immediately responded almost Congress jurisdiction” to “exclusive Court For Traynor. invitation in to the Court’s of the Board of Veterans’ decisions to increase review Congress, Traynor threatened 7252(a) Jones, (citations § (emphasis rel. F.2d at 1501 omit- Appeals, 38 U.S.C. ted). added), include the authori powers and its any question to decide of law to ty relevant finally, Third and Congress expanded 7261(a)(1), § id. proceedings, benefits provision review, precluding judicial “compel Secretary unlawfully action of the § formerly 211. Under the provision, new unreasonably delayed,” withheld or id. eventually 511,11 codified at § 38 U.S.C. 7261(a)(2). § The Veterans Court also has questions all VA “shall decide law authority All under the Writs Act to issue necessary by and fact to a decision necessary appropriate in aid of “writs Secretary under law that affects the 1651(a); § jurisdiction[ 28 U.S.C. ].” [its] provision by Secretary to Derwinski, Erspamer also see Vet. 511(a).12 § veterans.” 38 U.S.C. Whereas (1990) (holding “that App. this court 211(a) § review prohibited of “decisions has issue extraordinary ... under law ... providing benefits Act”).

writs under the All Writs veterans,” 211(a) (1970), § U.S.C. 511(a) § review prohibits questions of “all Second, decisions of the Veterans Court of law necessary and fact to a ... decision exclusively by are reviewed the Federal benefits,” that affects the Circuit, which “shall decide all relevant (2006). 511(a) § change, With this law, questions including interpreting Congress scope intended “broaden the statutory provisions.” constitutional and of section 211” and limit outside “court (d)(1).10 (c), 7292(a), § 38 U.S.C. Although decisionmaking intervention” in the VA may the Federal not Circuit review factual process. H.R.Rep. 100-963, See No. determinations, it review may applica- 5809; U.S.C.C.A.N. see Lar- also of law to tion facts if constitutional issue Jones, (“The rabee ex rel. 968 F.2d at 1501 7292(d)(2). implicated. § is Id. The deci- VJRA ... preclu- broadens section 211’s sions the Federal Circuit are final and courts.”). judicial sion of by review other only “subject by the Supreme review 511(a) The nonreviewability provision §in 7292(c). upon § Court certiorari.” As subject exceptions, is to four one of which observed, the Second “[b]y provid- Circuit previously relevant here and we have ing judicial Circuit, review Federal discussed: The Veterans Court and the Congress Supreme intended to obviate the may Federal Circuit review the Secre- Court’s reluctance to construe [§ as 211] tary’s regarding decisions veterans’ bene- barring judicial review substantial statu- 511(b)(4); § fits. 38 U.S.C. see id. tory claims, and constitutional while main- §§ 7292. taining uniformity by establishing an ex- clusive appellate sum, mechanism for supplies indepen- review of the VJRA two Secretary.” decisions of the by Larrabee ex dent means which we disqualified are VJRA Secretary also vested Federal Circuit shall questions decide all 10. exclusive over necessary by law and fact to a decision rules, regulations, policies. 38 U.S.C. Secretary provi- a law that under affects the §§ Secretary sion of benefits to veterans dependents or the or survivors of veterans. 11. Section 211 was recodified as 511 (b), Subject to subsection the decision of the Department of Veterans Affairs Codification Secretary question such as shall Act, (1991). Pub.L. No. 105 Stat. 378 may final and conclusive and be re- We pre-VJRA provision will refer to the as court, by any by any viewed other official or post-VJRA provision 211 and the whether an action in the nature of man- 511(a) 12. 38 U.S.C. states in full: damus or otherwise.

1023 Cir.1995) Small, (quoting concerning Hicks v. 842 veterans’ suits hearing from 407, (D.Nev.1993)). First, has ex- 413-14 Congress F.Supp. And their benefits. States, hearing us cases disqualified Littlejohn from v. we conclud- pressly United 511(a) (“may that, §in although to VA benefits related “the Federal Circuit [is] ed court”), any ... not reviewed jurisdiction be Article III with second, has conferred exclusive Congress challenges to hear to VA determinations such claims to the Veter- jurisdiction over disability benefits,” we could regarding Circuit, id. ans and the Federal Court Tort consider a veteran’s Federal Claims 7292(c). 7252(a), 511(b)(4), provi- §§ (“FTCA”) negligence claim alleging Act co-extensive, if a claim may not so sions doing doctors so against VA because would provision, either comes within have on the “possibly not effect bene- jurisdiction it oth- of court is divested already fits he has been awarded.” 321 have under 28 might erwise exercised (9th Cir.2003).13 915, In F.3d 921 neither we § are divested U.S.C. Hicks, Chinnock, Littlejohn nor did we H.R.Rep. power appellate review. See articulate a clear standard for evaluating No. 1988 U.S.C.C.A.N. jurisdiction party our when a raises claims jurisdiction challenges (“By vesting 5810 regarding VA benefits. solely the APA in the Court brought under Similarly, circuits most other have Circuit, bill for the Federal Appeals a comprehensive articulated test deprives States District Courts United preclusive contours determine such under 28 jurisdiction to hear matters said, being survey § That 511. cases 1331.”). Together, provisions these U.S.C. analyzed various that have from circuits Congress quite seri- was demonstrate consistent, § 511 demonstrates some over limiting our ous about largely undisputed conclusions as what of vet- anything dealing (and not) preclude. In § 511 does does erans’ benefits. review of made general, decisions of an veteran’s VA bene context individual § B. 511 Judicial Construction of jurisdic are proceedings beyond fits to ad- opportunity had limited haveWe outside the review tion of federal courts jurisdictional limita- scope of the dress the This established the VJRA. scheme Tumage, § we tion in Chinnock v. if his claim even the veteran dresses true review of precluded 511 our noted challenge, Zuspann a constitutional see interpretation regulation of a VA’s (5th Brown, F.3d 1159-60 Cir. disability of a affected the denial veteran’s 1995) alleged no con (finding remedy for (9th F.2d n. Cir. benefits. 995 violations veteran was because stitutional 1993). Small, Then, con- in Hicks v. we ultimately a denial of “complaining about con- prevented us from cluded that Derwinski, benefits”); Sugrue v. F.3d tort claims sidering a veteran’s state (2d Cir.1994) (“[T]he 8, 10-11 courts do not adju- a VA doctor because brought against challenges hear acquire necessitate dication of those “would merely determinations because fact of issues of law and ‘consideration in constitu those are cloaked the decision to reduce Hicks’ involving Jones, terms.”); ex rel. benefits,’ by tional Larrabee specifically precluded a review (9th 511(a).” due (dismissing F.2d at 1498 veteran’s separate procedures VA had for deal- specifically that the FTCA confers Littlejohn, ing See claims. with FTCA claims. district courts to hear such on federal 1346(b)(1). n. 5. We also noted F.3d at 921 See 28 U.S.C. 1024 challenge gravamen provide where claim and thus does not the VA “[t]he

cess that the VA complaint the amended with exclusive over attor- [was] [the provide Then, failed to with veteran] in ney]’s ha[d] [the claim.” Id. Bates care”); Nicholson, Ad adequate Hicks v. Veterans held v. the Federal Circuit that (8th min., 1367, 961 F.2d 1369-70 Cir. a determination of whether to terminate 1992) (veteran’s claim his benefits practice of an attorney the certification reduced his were because he exercised jurisdic- subject the VA was before the rights ultimately Amendment a First was Appeals. tion of the Board of Veterans’ “challenge affecting to a decision benefits” 1355, (Fed.Cir.2005). 398 F.3d 1365-66 511), by § even precluded where Rejecting the concurrence’s criticism that veteran has some challenged the other 511, needlessly expanded § its decision the that, although wrongful conduct unrelated § preclusion court noted that 511’s “con- claim, on his to the VA’s ultimate decision templates formal ‘decision’ the Secre- his or her see proceeding, affected tary delegate” apply or his does not States, 518, v. F.3d Weaver United 98 519- every may indirectly decision affect (10th Cir.1996) (finding 20 no Id. at 1365. benefits. conspiracy the claimant where sued for Circuit, cases, D.C. in a series of fraud, claiming employees that VA Circuit, very and the Sixth in a case simi records); concealed his medical In re cf. one, lar to this have the articulated most Russell, (8th Cir.1998) 1012, 155 F.3d 1013 comprehensive and relevant standard for curiam) (court issue writ (per could not determining the scope of 511. See ordering mandamus the Board Veter Mather, 106, Broudy 460 115 F.3d Appeals and to act ans’ Veterans Court (D.C.Cir.2006); Principi, Thomas v. 394 benefits). request veteran’s But see (D.C.Cir.2005); F.3d Price v. Dep’t Disabled Am. Veterans v. U.S. States, (D.C.Cir. United 228 F.3d (2d Affairs, Veterans 2000) curiam); Beamon, (per F.3d at Cir.1992) (“[S]ince the neither Price, 971. In the D.C. held that Circuit a claim for challenge make benefits nor precluded juris the district court’s claim, denial of such a but rather diction to consider a claim for veteran’s constitutionality statutory of a classifi expenses reimbursement of medical be cation drawn Congress, cause, in order for the court to resolve ”). jurisdiction.... court had whether VA had failed to reimburse Federal Circuit also addressed has veteran, it require “would the district scope primarily albeit in court to determine first whether that do cases not involve a chal- veteran’s in properly request acted handling Price’s lenge VA’s administration bene- reimbursement.” 228 F.3d at As States, In Hanlin v. fits. United an attor- noted, consistently the court “courts have ney sued VA for in attorney’s fees a federal may held that district court Claims, claiming Court Federal statutory entertain constitutional or of implied breach contract under a fee require whose resolution would the court arrangement with a veteran. upon jurisdiction.” to intrude VA’s exclusive (Fed.Cir.2000). Although the Id. government argued precluded court, analysis The D.C. Circuit review that confirmed this the Federal Circuit 511(a) There, disagreed, “§ holding brought does not Thomas. the veteran require Secretary to address such a an action under the he FTCA which previously approval 14. We Littlejohn, cited Price F.3d at 921. thereby rights violating “failed to their under the the had render that

alleged ... un- Administrative Procedure Act and care medical services” and appropriate the the Due Process Clause of the Fifth der care him “medical treat- thereby denied 125 F.3d at The Sixth (internal Amendment.” 966. Thomas, at F.3d ment.” explicitly that “the VJRA Circuit held omitted). Relying marks quotation juris- and granted comprehensive exclusive Price, that D.C. held the rele- the Circuit the [Veterans Court] diction to the and adjudicating Thom- was “whether vant test seeking Federal over claims review Circuit require the district court as’s claims would of VA that relate deci- decisions the VA acted whether benefits ‘to determine first 511(a).” (empha- § Id. sions under at 971 Thomas’s re- handling’ benefits properly added). The court concluded sis therefore Price, at F.3d (quoting Id. quest.” that it not hear could “constitutional issues 422). The court some oí at concluded that a allegations VA decision has by tort claims were barred Thomas’s unreasonably delayed” inade- by been the Id. § while others survived. at 974- quacies procedures. Be- of the VA’s Id. adjudicating plaintiffs’ cause the claims The D.C. Circuit confirmed this test require would the district court to “review 114-15, Broudy, at again in 460 F.3d benefits, individual for claims veterans’ the § in which also identified a situation they manner in which were processed, There, jurisdiction. preclude did not its by the rendered of- regional decisions allegedly the VA for plaintiffs sued fice of and the the VA” Board of Veterans’ results, withholding test effec- radiation Appeals, type of falls within “[t]his review denying access to the tively plaintiffs of the [Veterans exclusive plaintiffs at re- courts. Id. 109-10. by Court] U.S.C.] defined [38 among things, the “imme- quested, other 7252(a).” § at 970-71. Id. release all relevant records and diate cases, these con Synthesizing we injunction preventing and an documents” precludes jurisdiction clude that misconduct. Id. future instances of such a requires over claim if it the district court Distinguishing the case from at to review ‘VA decisions that relate to ben Thomas, the D.C. Circuit held Price Beamon, decisions,” efits 125 F.3d at jurisdiction to it had consider including “any decision made the Secre those plaintiffs’ claims because claims did tary in de making the course “to require the decide not terminations,” Broudy, at 115. any of whether the veterans whose claims This standard is consistent with Con Secretary rejected entitled [we]re scope” to “broaden gress’s intention Id. Nor their benefits.” at 115. did judicial provision, H.R.Rep. preclusion require claims the court “revisit at No. 1988 U.S.C.C.A.N. Secretary made decision 511(a)’s plain and is reflected making course benefits determina- may not statement that we review “deci added). Thus, (emphasis tions.” Secretary a law that sion under juris- it D.C. Circuit concluded had provision affects the bene [veterans’] diction. Id. 511(a). fits,” preclusion 38 U.S.C. This from In addition these cases the D.C. adjudicat extends to cases where Circuit, closely analogous we find a case requires ing veterans’ claims the district in Beamon v. the Sixth Circuit’s decision acted court to determine whether the VA Beamon, plaintiffs claimed handling request Brown. veteran’s properly benefits, processing that “the VA’s but also those decisions Price, may cases. delays, unreasonable affect such See cause[d] Thomas, 422; 974; F.3d at F.3d at fects the by the Secre- [them] 114-15; Broudy, 460 tary” accord falls under the ambit of 511. Ac- Beamon, cordingly, 125 F.3d at 971. If that we turn test is first to VCS’s various met, then the district court must cede mental health claims and then to VCS’s case, disability compensation claim to over the claims to deter- juris- mine whether the parties must seek a forum in district court had the Veterans diction under 511. Court and the Federal Circuit. A.

III. Mental Health Care Claims APPLICATION case, delays VCS claims that In this in the we must determine whether provision VHA’s of mental health VCS has raised care vio claims that “ques- involve late the APA and the Due Process tions of law and fact necessary to a deci- Clause.15 requests VCS also the adoption by sion the Secretary under a law that of a appeals process formal to allow veter provision affects the by ans to an administrator’s deci 511(a). Secretary.” 38 U.S.C. Under to place sion a veteran on a wait list for regulations, VA’s “benefit” is defined care, mental health more transparent clini “any payment, service, status, ... or cal appeals procedures, expedited and an entitlement to which is determined under procedure for veterans presenting PTSD laws Department administered symptoms to receive access to mental Veterans Affairs pertaining to veterans health care.16 dependents and their and survivors.” 38 20.3(e). Here, C.F.R. VCS claims that Section 511 undoubtedly deprive would delays in the provision VHA’s of mental us of to consider an individual health care and the VBA’s of veteran’s claim that the VA unreasonably service-related disability benefits violate delayed his mental health care. at- VCS statutory the VA’s obligations to provide tempts to jurisdictional circumvent this and, therefore, veterans with care deprive limitation disavowing relief on behalf of veterans of “property” under the Due Pro- any veteran, individual prof- instead cess Clause. Mental health care and dis- fering evidence of average delays to dem- ability compensation clearly “benefits,” are onstrate statutory and constitutional viola- any so “question of fact or law” that “af- emphasized tions.17 VCS in its complaint 15. The district court exercised but randum. VCS claims that these measures because, denied VCS’s among APAclaim oth- improve would the circumstances of veterans things, er pertain VCS’s claim did not to a experiencing delays of mental action,” agency "final and thus could not care, be health adopt and the failure to them Veterans, brought under the APA. violates the Due Process Clause of the Fifth Norton, F.Supp.2d (citing at 1059 542 U.S. at Amendment. 2373). The district court denied process challenge VCS’s due to the VHA’s example, alleges: 17.For VCS provide failure timely care on the merits pertaining facts herein to the [veterans prove because VCS "did systemic denial organizational plaintiffs] are included or delay unreasonable in mental health care.” specific purpose[ for the illustrating ... ] of Id. at 1082. We do not address these conclu- Practices, Challenged and not for sions because we hold that the district court purpose obtaining review of decisions jurisdiction. lacked by the VAor Nothing [the Veterans Court]. So, example, argues VCS that the VA herein is intended or should be construed compelled implement should be attempt remedial as an any obtain review of deci- measures recommended in the relating VA's Mental sion sought by any to benefits vet- Strategic Health Feeley Plan and the Memo- question eran ... or to validity they apparent present- with the would be were “constitutional defects herein, not for ing are ... a claim themselves but for as set forth systems, VA’s others, indeed, an group unidentified from the facts of individual divorced ¶ standing others. But one can not have appeal, re- Compl. On VCS claim.” by asserting injury federal court an average regarding its claims peats else.”). someone questions not involve law delays do necessary provid- to a decision about fact Here, may it similarly VCS does veteran. ing benefits to individual claims, standing for not have its because a average claim harm based seems con- allegations bear a close resem trary Supreme requirement Court’s organi blance to those made veterans’ harm “particularized” of that “affect[s] way “went out of their zations who in a plaintiff personal the and individual for” forswear individual relief veterans way.” Lujan Wildlife, See challenge in a VA’s Defenders of 555, 560, 504 U.S. 561 n. S.Ct. recently by considered the appeals (1992). Nevertheless, 119 L.Ed.2d 351 be- See Viet. Veterans Am. v. D.C. Circuit. indepen- cause it is clear that there an is Shinseki, (D.C.Cir.), 654, 662 599 F.3d — statutory jurisdiction, dent bar to our we denied, U.S. -, 131 S.Ct. cert. standing need reach the issue. (2010). There, L.Ed.2d 44 much like here, alleged organizations the veterans’ complaint The fact that VCS couches its “[njothing complaint in this is intend average delays disguise terms of cannot an attempt ed as ... an to obtain review of is, fundamentally, the fact that it a chal- by determination the or its individual lenge thousands of individual mental (internal system,” quo at appellate id. by health benefits decisions made the VA. omitted), they submitted tation marks In average order to determine whether the average delays in the evidence of VA’s by unreasonable, delays alleged VCS are But, appellate process, id. 662. the district court would have to review the noting plaintiffs’ apparent the “rather ef surrounding provi- circumstances the VA’s preclusive fort to avoid the bite” of sion of benefits to individual veterans. 511(a), that, the concluded D.C. Circuit juris- acquire The district court does not by disavowing relief based on individu just complaint diction over VCS’s because veteran, plaintiffs al the overlooked the challenges many VCS benefits decisions average processing fact that “the time Indeed, single rather than a decision. injury; does not cause it is [veterans] average processing nothing time tells us processing time that is Id. their relevant.” processing about the causes for such time. at 661-62. The court reasoned that even alleges average processing VCS that the “assuming alleged ‘illegality’ time mental health claims too long, for —that average processing stage time at each is but the district court no would have basis long illegality too does not cause the evaluating inquiring for that claim without —that injury.” This anal [plaintiffs] Id. into the circumstances of at least a repre- ysis led the D.C. Circuit to conclude that sample sentative of the veterans whom plaintiffs standing pursue lacked represents; VCS then the district court (“If their claims. the affiants were process- would have to decide whether the how we suing ing themselves—which is time was reasonable or not as to each Am., analyze asserting that the must individual case. Viet. Veterans claim— Cf. 662; Price, at 422. average processing long, was too it 599 F.3d at time of ¶ Secretary Compl. made benefits decisions VA.

Moreover, determining relief whether handled provide in order to the VA seeks, requests properly. court would those therefore the district We that VCS procedures lack various prescribe have consider VCS’s supervise cessing provi- mental health claims claims for relief related to the VA’s To deter- care, enforcement of its order. including sion of mental health its followed, whether its mine order has been to the lack to look at the district would have may appeal ad- which veterans the VA’s processing addition to individual times. See scheduling ministrative decisions. general approach concern that “this 511(a).18 our virtually have the federal courts as would Disability Claims B.

continuing monitors of wisdom and Benefits action,” Laird v. of Executive soundness sys next claims that the VCS VA’s Tatum, 1, 15, 2318, 33 408 U.S. adjudicating eligibility tem for veterans’ (1972), it embroil the L.Ed.2d would disability benefits suffers from uncon day-to-day operation court in the delays and scionable therefore violates and, necessity, require the VA of vet statutory rights constitutional court to monitor benefits individual that, erans. The district court concluded determinations. “determination the de because of whether adjudication] sum, lay[in benefits is unreason way

In there is no for the district depend each may able on the facts of to in court resolve whether the VA acted a claim, § particular prevents in 511 Court timely regard and to this effective manner Veter undertaking a provision of mental care without from such review.” the health ans, (citation F.Supp.2d of evaluating the individual 563 at 1083-84 circumstances treatment, omitted).19 requests agree veterans their for We with the district course, (Fed.Cir.2001) (holding 18. Of individual a vet- extent that that delay pro- "right challenge veteran claims in the appeal unreasonable to eran's of covers a benefits, may of his file a claim in priority category vision he [treatment] the to the which " Court, power the assigned,” the Veterans which to has has been 'deci- veteran as well as "compel Secretary unlawfully action regarding of sions enrollment and disenroll- " delayed.” unreasonably systems withheld or providing hospital and ment’ in West, 7261(a)(2); Stegall see v. (quoting also care medical Enrollment —Provision (1998) Veterans, Vet.App. (concluding Hospital Outpatient of Care to " 54,207, 54,211 6, 1999))); authority 'compel (Oct. Fed.Reg. its to action the Secre- West, tary unlawfully (1998) unreasonably de- withheld or Vet.App. Meakin v. ” layed' gave authority (reversing to Veterans Court it Board’s conclusion "remand the claim with directions that the eligi- lacked to resolve a veteran's because, Secretary order an exami- bility additional medical for fee-basis medical care inter alia, complies pertinent nation that require with all statu- review such would "an ad- tory regulatory requirements” (quoting decision as the VA ministrative to whether Brown, 7261(a)(2))); capable 38 U.S.C. v. facility furnishing previously Ebert a cf. (1993) Vet.App. care, services, (considering 436-37 but course of treat- determined denying challenge ment”); 20.101(b) (per- as moot the claimant's accord 38 C.F.R. two-year scheduling delay the VA's "questions eligibil- in the mitting Board review of Likewise, treatment, appointments). ity hospitalization, medical both the outpatient by Veterans Court and the Circuit have Federal other ... and for benefits administered confirmed their to hear chal- do not involve deter- [VHA]” "[m]edical minations”). lenges the VHA administrative decisions provision affect to veter- of benefits ans, "scheduling such that re- as the VHA decisions” 19. The district court also concluded challenged by Paralyzed impli- solving "invariably VCS. See Veterans VCS’s claims would E. Veterans, Sec’y regulations,” F.Supp.2d Affairs, Ass’n cate VA for the same reason that we ex- “asked the district court to review the respect earlier with in plained delays legality constitutionality proce- mental health care—we juris- simply lack dures that the VA uses to decide benefits diction. Beamon, claims.” 125 F.3d at 970. The Sixth plaintiffs’ Circuit concluded that challenge to delays

Like VCS’s questions raised of law and fact care, of mental health provision VA’s regarding of benefits delays in the VA’s ad- VA and that judication “[djetermining the disability proper of veterans’ benefits plainly implicates questions for claim law and fact ais nec- regarding appropriate pro- essary precursor method of deciding veterans ben- viding benefits to individual veterans. The 511(a), efits claims. Under the VA Sec- district court cannot decide such claims retary shall type question.” decide this determining without whether the VA acted plaintiffs alleged Because the that “VA properly handling individual veterans’ procedures cause unreasonable delays” in requests point at each claims, the resolution of benefits ad- “[t]o deprives cess. Section 511 the district judicate claim, this the District Court questions. court of over such would need to review individual claims for benefits, conclusion, veterans’ manner which reaching this we find our- Circuit, they processed, were selves in accord with the Sixth and the decisions Beam- question rendered regional which resolved similar office of the VA There, on v. Brovm. and the BVA.” Id. at 970-71.20 group of veterans 1084, courts, regulations requiring procedural rights at such as the VA the to like all under evidence, collecting to assist the veteran in process the due clause of the fifth amend- 3.159(c), regulations § C.F.R. and establish- ment, enough process is an entitlement to ing procedural requirements ap- the for an ensure reasonable likelihood of an accurate peal, §§ id. 20.200-202. Because "38 U.S.C. result, sake.”). process not to for its own permits litigation challenges § 502 of to VA respect, In this VCS is much like the three Circuit,” regulations only in the Federal the sought represent veterans in Beamon who § independent viewed district court 502 as veterans, similarly-situated Veterans, a "class of to chal- jurisdiction. bar to its lenge processes the manner in which the F.Supp.2d § [VA] at we 1084. Because find benefits,” controlling dispositive disability for and of VCS’s claims veterans’ 125 F.3d at claims, express we view benefits no on the which makes the dissent’s reliance impact § of 502. perplexing, Dissenting all the case more There, Op. at 1039. the time the veterans' jurisdictional The dissent's answer to the Circuit, appeal the Sixth two reached of the question distinguish tois between "direct or representative plaintiffs had received final de- indirect to actual benefit deci- the cisions on merits of their claims and the sions,” agrees beyond which the dissent are waiting third was still for a final decision. jurisdiction, the district court’s and "claims Beamon, plaintiffs 125 F.3d at 966. Those that would have no effect on the substance of here, sought, like VCS do to more than mere- award,” any actual benefit which the dissent ly litigate individual their claims to conclu- argues precluded by § are 511 and are sion; rather, they challenged "legality type of claims raised VCS here. Dis- constitutionality that the VA 1038-39; senting Op. at see id. at also uses to decide benefits claims.” Id. at 970. ("Plaintiffs' concern is not with the substance exactly The Sixth Circuit held as we do here: of benefits decision. Their concern is "Determining proper procedures VCS, could, process.”). even if it is not adjudication necessary precursor claim is a asking process rather for its own sake but claims,” deciding "[u]n- veterans benefits process timely to ensure and accurate benefits 511(a), Henman, Secretary § der the VA shall decide v. decisions. Gometz Cf. Cir.1986) (7th ("The question.” right type of Id. access this jurisdic- district court must retain claims that no such review is re- VCS challenges average it quired “challenge here because tion over its to the administra- delays adjudication” service-relat- gridlock plaguing tive (as disability delay opposed ed Supreme benefits claims under the Court’s processing one individual Robison, decision in Johnson claim). previously For reasons we dis- 361, 94 S.Ct. 1160. VCS notes that the cussed, that is a distinction without differ- § recognized that Robison drafters average delays ence. Whether judicial authority correct in asserting “was complains which are VCS reasonable de- to decide whether statutes meet constitu- pends on the facts of individual veterans’ 100-963, H.R.Rep. tional muster.” No. claims, complexity such as the of the claim 22,1988 U.S.C.C.A.N. at 5803. (PTSD being some of the most diffi- Although we discussed Robison resolve), severity cult to of the disabili- history, requires context of 511’s it ty, availability quality Robison, further discussion here. noted, evidence. As the district court “a objector conscientious completed who al- eight veteran who raises seven or issues ternative service was denied veterans’ likely his or her claim will face a more educational program benefits under a protracted delay than a veteran who raises granting persons such benefits to who Veterans, only one or two issues.” duty served full-time in the Armed F.Supp.2d at 1083. Because the district 362-64, Forces. 415 U.S. at 94 S.Ct. court lacks to review the cir- 1160. He claimed that this violated the cumstances decisions that created the equal protection component of the Due delay case, in any one veteran’s it cannot Process Clause. Id. sys- determine whether there has been a 1160. The government argued that temic denial of process due due to unrea- the predecessor deprived delay.21 sonable jurisdiction. the district court of In- VCS asserts that if the district court deed, government’s under view of claims, lacks to hear its it then no court had to review will be adequate unable to secure relief plaintiffs equal protection claims.22 compelling because the VA to issue a deci- 366, Id. at 94 S.Ct. 1160. sion on individual benefits is not the same curing Supreme the deficiencies that Court held that cause wide- the dis- end, spread delay. To that contends trict jurisdiction. VCS court had Although added). 21. VCS Conversely, relies on the D.C. Circuit’s adjudicating decision VCS’s 115, Broudy, proposition 460 F.3d at for the require claims here would us to revisit the challenge delays that its to the VA’s avoids the handling decisions the VAmade in a veteran’s preclusive Broudy § effect of 511. But does request making "in the course of support position. Broudy not involved According Broudy, determinations.” Id. withholding to the VA’s of radia- beyond such claims are the district court's plaintiffs’ request tion test results jurisdiction, agree. and on this we injunction a release of those records and an against future misconduct. Id. at 109-10. Significantly, Ap- the Board of Veterans’ D.C. Circuit held that it had peals "expressly authority had disclaimed only finding over these after that re- Robison, questions.” decide constitutional solving require them did not the district court Construing 415 U.S. at 94 S.Ct. 1160. any "to decide whether of the veterans whose preclude judicial § 211 to review would have [wejre Secretary rejected claims the entitled any meant that neither the VA nor court to benefits” or to decision made "revisit have would been able to consider the consti- Secretary making in the course bene- challenges. tutional (emphasis fits determinations.” Id. at 115

1031 seeking court of the the Federal Circuit over claims provided § “no Unit power have ed States shall review of VA decisions that relate to bene- concerning 511(a). the VA’s decisions juris- § to review” fits under decisions This benefits, id. at 94 S.Ct. 1160 veterans’ ”); diction includes constitutional issues.... (internal omitted), marks quotation Dep’t Affairs, Hall v. U.S. Veterans’ precluding federal Court held (11th Cir.1996) curiam) (per questions of constitutional would review that a (holding direct constitutional chal- questions concerning the “raise serious lenge regulation brought to a must be 211(a),” § at 366 & constitutionality of id. Circuit); Hicks, in the Federal 961 F.2d at 8,n. 1160. The Court construed S.Ct. (“These provisions amply evince Con- chal § 211 to federal review of bar issues, gress’s intent to include all even ” of the ben lenges to “the administration ones, necessary to a constitutional decision 367, 94 program. efits Id. at S.Ct. ap- which affects benefits in this exclusive objector had the conscientious Because scheme.”); pellate Addington review Congress’s design on constitu challenged States, (2010) United Fed.Cl. of re grounds, preclusion tional 211’s (“The remedy exclusive for claims of due Secretary’s actions did not bar view of the process violations lies in the [Veterans Following jurisdiction.23 the exercise of Court].”). Robison, Supreme confirmed Court importantly, nothing More in the VJRA jurisdiction to that “district courts have judicial forecloses review of constitutional op attacks on the entertain constitutional questions suggests. as VCS After Robi- systems” of the claims under the eration broadly, Congress son read “subse- v. Nat’l Ass’n precursor to 511. Walters Court], quently established the [Veterans Survivors, 305, 311 Radiation 473 U.S. effectively stripping district courts of (1985). 3180, 87 L.Ed.2d 220 n. Beamon, jurisdiction,” such 125 F.3d at ques- warning Robison’s of “serious (ex- 4; Bates, n. 398 F.3d at 1364 cf. concerning preclude all tions” statutes plaining “specialized that the VJRA’s re- judicial application review is of limited process” exchanged view court review for First, drapes here. the fact that VCS its “independent judicial review of the [VA]’s claims in constitutional terms is not itself Court”). I final decisions a new Article us. Nu- sufficient to confer Congress But did leave veterans with- recognized that merous courts have out a forum for their constitutional claims. jurisdic- broadly divests district courts of Congress created the Veterans When tion over constitutional claims related Court, expressly empowered it that court benefits even where those claims concern law, questions to “decide all relevant challenge do not agency constitutional, interpret statutory, See, specific benefits determinations. (“[T]he regulatory Beamon, provisions, and determine the e.g., 125 F.3d at 971 meaning or of the applicability terms of explicitly granted comprehensive VJRA jurisdiction Secretary.” to the and action of the and exclusive CVA 38 U.S.C. Johnson, challenges In Moore v. we concluded that er it a "decision of the Administra- principle 'question concerning “established the that 38 tor on a of law or fact’ Robison VA, 211(a) provided by § a benefit” or instead U.S.C. does not bar determina- constitutionality constitutionality of an act of tion a federal court of the Congress. precedent, ”[o]nly legislation.” F.2d Id. Under our of veterans’ benefits 582 1228, (9th Cir.1978). category interpreted We actions within the latter are review- 1232 Cleland, § require able” under 211. Devine v. Robison to an examination (9th Cir.1980). "substance” of an action to determine wheth- F.2d added). 7261(a)(1) (emphasis law, § That same all questions including cide relevant leaves no doubt that the Veterans statute interpreting constitutional and statutory authority adjudicate 7292(d)(1). Court has the to vet- tandem, § provisions.” Id. In erans’ constitutional claims that benefits availability of review both the Vet- “unlawfully have been or unrea- withheld erans Court and the Federal Circuit 7261(a)(2); sonably delayed.” Id. Viet- Congress’s protect evinces intent Am., nam Veterans 599 F.3d at 659-60 federal courts and the VA from time-con- 6; Beamon, n.& see also 125 F.3d at 968 suming veterans’ benefits litigation, while (finding that the Veterans Court “has the providing a specialized forum wherein power provide adequate relief for the complex decisions about such benefits can plaintiffs” seeking challenge the VA’s be made. Congress fully has answered decisions”). “unreasonably delayed Supreme question” Court’s “serious power Veterans Court’s is such that concerning constitutionality 511’s single its orders not affect how a jurisdiction. limitation on our handled, veteran’s claim is but will dictate sum, Congress may have foreclosed how similar claims are handled the VA our review of the VA’s decisions related to Beamon, in the future. See 125 F.3d at adjudication, claims but it has foreclos (“Plaintiffs may bring their claims in- judicial ed federal review in toto.24 What Courtj’s dividually, and the [Veterans deci- Robison, questions,” ever “serious sions of individual claims will have a bind- U.S. 94 S.Ct. might arise if ing effect on the manner which the VA Congress preclude were to all claims.”). review of processes subsequent veterans’ challenges, constitutional there can be no power, together That authority with the question that Congress may extraordinary issue eliminate our pursuant writs to the jurisdiction Act, 1651(a); decisions, All to review the Writs VA’s see Am., preserving Vietnam while such review elsewhere. Const, 6; Ill, 2,§ 659-60 & n. see Erspamer, also art. cl. Vet. 2. As the App. at makes the Supreme Veterans Court an Court in Lockerty stated v. Phil adequate forum for type this of claim. lips, Congressional power “[t]he to ordain and establish inferior courts includes the

Beyond Court, the Veterans Congress power ‘of investing them with also ensured an Article III court can limited, concurrent, exclusive, either or such Congress review claims. granted the and of withholding jurisdiction from them Appeals Court of for the Federal Circuit degrees the exact and character which the “exclusive to review and Congress may proper seem pub for the decide validity ” good.’ 182, 187, lic 319 U.S. regulation statute or any interpretation (1943) (quoting L.Ed. 1339 section, Cary thereof v. Cur brought under this and to tis, (3 Howe) 236, 245, 44 U.S. interpret constitutional 11 L.Ed. statutory pro- (1845)). visions, to the extent We lack presented and over neces- sary 7292(c). to a decision.” challenging delays 38 U.S.C. home, To point drive the Congress af- VA’s of service-related dis firmed that the Federal ability Circuit “shall de- benefits. Although the dissent system. accuses us of Dissenting Op. at 1038. The ''leaving] millions of veterans” without an dissent is correct there is a "forum” remedy delays affecting available to address opera- available for veterans to determinations, id., system, it has failed to ac- tion of the VA but that forum does (let knowledge analyze) versatility alone not involve the district court. veterans, Regional Procedures

C. enced but on the absence in Office procedures the statute of certain VCS argues that there is a lack of ade- VCS necessary claims are safeguard veter- quate procedures when veterans file their ans’ rights. Were the former 38 U.S.C. disability for service-related bene- claims here, § 211 applicable there is little doubt Regional fits at VA Offices. its com- jurisdiction that we would have to hear plaint, VCS framed this claim as a chal- this claim Supreme because the Court held VJRA, lenge constitutionality to the that facial constitutional challenges were claiming the statutes codified § exempted jurisdictional from pre- 211’s deny adequate act veterans procedural Robison, clusion. See at ¶ (“The safeguards. Compl. See 94 S.Ct. 1160. But since the enactment of violates Plaintiffs’ process VJRA due VJRA, appeals appear courts of ”). rights respects.... in a multitude of split on the issue of portion whether that appeal, argues On that its VCS members analysis Robison’s survives the process are denied due because VJRA. existing however, question, We whether procedures provide necessary pro- do not these thoroughly courts have during analyzed tections veterans the initial the ef- process. forts Congress Procedures VCS undertook to broaden implemented pre- wishes to see include a 511 and the concurrent effort it took to hearing, discovery subpoena decision establish exclusive review scheme for power, paid and the retention of counsel to claims related to veterans’ benefits. The assist the submission of an initial claim. Circuits, Second and Fifth as well as the The district court claim denied this on the Court, have affirmed that facial merits, holding that the VA’s constitutional to acts of Con- did not violate the Due Process Clause of gress including challenges brought by in- — Veterans, the Fifth Amendment. 563 dividual may brought in fed- claimants— F.Supp.2d agree 1088-89. We with the eral district court despite 511’s broad district court. See, preclusive e.g., mandate. Zuspann, 60 F.3d at 1159 (addressing whether the 1. Jurisdiction “complaint challenges claimant’s the VA’s jurisdictional question complex is a benefits, him deny decision to or whether one, and close but we conclude that we it makes a facial challenge to an act of have over these claims. As we Jones, Congress”); Larrabee rel. ex discussed, have lack we either (the “precludes judicial VJRA §if 511 prohibits jurisdiction, our or if claims”); review of non-facial constitutional review of VCS’s claim is entrusted to the Veterans, Am. Disabled 962 F.2d at 141 exclusive review mechanism established (same); Brown, VetApp. Dacoron v. the VJRA. We first hold that 511 does (1993). Eighth ap- Circuit our bar to consider this pears to have taken a different view. See claim. We then conclude that claim Hicks, 961 F.2d at (concluding 1369-70 jurisdic- does not fall within the exclusive that provisions “amply of the VJRA evince tion of the Veterans Court or the Federal issues, Congress’s intent to include all Circuit. ones, necessary even constitutional to a

First, decision which affects benefits ex- [an] carefully VCS has structured scheme”); clusive appellate review see also complaint its to avoid preclusive 511’s Hall, F.3d at pled, (recognizing effect. As VCS asserts a facial chal 534-35 lenge constitutionality Eighth of Appeals ap- “[t]he the VJRA Circuit Court any based not on average delays experi- pears to have taken a different as to view” 1034 to provision of benefits affecting the of facial sions” preservation Robison’s

whether 511; claimants. 38 U.S.C. any survives individual challenges constitutional VJRA). analogous notice to a (requiring most in the case see also id. And here, Beamon v. Secretary presented the claims a “decision veteran of Brown, appears to have Circuit affecting the Sixth title 511 of this under section matter, holding that claimant”). equivocated on the In- to a provision of benefits chal- jurisdiction over facial “district deed, at challenge not decisions VCS does Congress survived to acts of lenges constitutionali- A consideration of the all. 972, 511],” yet concluding at [§ in which frame place, ty procedures of the effectively stripped] ... “Congress his system by presents which a veteran any jurisdiction” courts of such district VA, a con- is different than claims to opera- attacks on the over “constitutional that emanate of the decisions sideration at 973 n. 4 system,” the claims id. tion of presentation of through the course of the omitted). (internal quotation marks respect, VCS does those claims. this Beamon, however, putative involved a the decisions of the not ask us to review by three brought action veterans class veterans, in the cases of individual but processing in the of vet- challenging delays cases,” consider, “generality in the benefits, 966, and the Sixth erans’ id. deprivation inherent the risk of erroneous plaintiffs’ that the own concluded Circuit existing procedures compared brought in the Veterans claims could proce- of the additional probable value Court, at 972-74. id. v. requested by VCS. See Mathews dures Ultimately, we need not decide whether 344, 893, 319, Eldridge, 424 96 S.Ct. U.S. seeking benefits would be an individual (1976). Evaluating under 47 L.Ed.2d 18 bringing § 511 from a facial barred Due Process Clause the need for sub- challenge constitutional discov- power, ability obtain poena before us question court. The immediate procedures other ery, or VCS is challenge is whether VCS’s to the VJRA requests sufficiently independent is challenging the con- similar to its claims as to an individual veteran’s VA decision delays adjudi- duct of the VHA and the 511 does not bar claim for benefits claims, disability cation of service-related jurisdiction.25 our already we have concluded would which Second, delays unlike VCS’s of in- require review of circumstances of the benefits the administration by veterans. requests dividual for benefits gram, the exclusive review scheme estab- claims, reviewing previous Unlike those 7252, §§ by the VJRA 38 U.S.C. lished and han- filing for VA’s 7261, us of deprive and 7292 does not dling Regional benefits claims at the Of- Although over this claim. require not us to review “deei- fices does 778, 789-91, 1756, extent, S.Ct. 36 L.Ed.2d claim a close U.S. 25. To that bears (1973) (there right to an process due is no automatic resemblance to other evaluate, hearings), institutionally attorney probation revocation competent we are any process place, example, is due in the first whether the lack of notice or a whether 651, e.g., Ingraham Wright, U.S. 680- hearing requires specific proce- v. us to order 82, 1401, (1977) (due 51 L.Ed.2d 711 capable implementation, see 97 S.Ct. dures 258, require hearing Kelly, process before Goldberg v. U.S. 90 S.Ct. does inflicted); (1970); v. corporal punishment is Goss Lo L.Ed.2d 287 see also Mem- Light, Craft, pez, 95 S.Ct. phis Gas & Water Div. v. 436 U.S. (1975) 1, 18-19, (1978) hearing (requiring a be 56 L.Ed.2d 30 L.Ed.2d suspended there (hearing required terminating or as soon before utilities fore student practicable). nonpayment); Gagnon Scarpelli, after as may challenge individual veteran “VA 2. Merits during adjudication the of cedures individ- jurisdiction, of our we Satisfied delayed benefits contesting

ual deci- claims turn of affirm to the merits this claim. We Beamon, sions,” in 125 F.3d at the district court because the nonadver Circuit, or the Federal Veterans Court procedures Regional sarial at the Office provide by VJRA does not a mechanism process. level satisfy are due sufficient organizational plaintiffs analysis which the here The district court conducted an might challenge system- Eldridge the absence of Mathews v. factors and ruled that although and “veterans their families procedures, wide which they contend are have a in” compelling interest their bene necessary process. to afford due This case fits, consequences and “the of erroneous does not involve individual seek- veterans deprivation can devastating,” be the risk of ing the lack procedures error government’s was low and the inter Offices, place Regional at VA but rather est weighed strongly in favor of denying organizations representing their members procedures VCS the requested.27 additional claiming system-wide risk erroneous Veterans, F.Supp.2d at 1087-88. Daemon, deprivation. See Vet.App. at agree analy- We (noting that district court’s constitutional point reproduce sis on this it here: “presented could be to this Court factors, the context a proper timely appeal Under the Mathews the cur- rent system adjudicating taken from such by decision made the VA veterans’ [Board]”). [disability] process. claims satisfies due Secretary through the In other It is words, without doubt that veterans and because bring VCS cannot its suit their a compelling families have interest Court, in the Veterans that court cannot in receiving disability benefits and that jurisdiction claim exclusive over the suit. the consequences depriva- of erroneous would be Because VCS unable to assert its tion can devastating. looking In claim in review scheme established claims, the totality of [disability] howev- VJRA, §§ see 38 U.S.C. er, the risk of erroneous deprivation operate that scheme does not to di- relatively small. 11% of file No- veterans jurisdiction.26 vest us of tices of Disagreement upon jurisdiction We conclude we have of their by [Regional Offices]. claims over claim related to Only proceed 4% to a past the NOD affecting adjudication of claims the Re- [Board], Thus, decision while the gional level. precluded Office We are not avoidable remand rates at the are exercising jurisdiction by from either extraordinarily high, only 4% of veterans provisions 511 or conferring exclu- who affected. file benefits claims are sive on the Court Veterans constitu- Plaintiffs here “confront the principle the Federal tional posed Circuit. hurdle procedure 26. Even evaluating if an individual could raise whether a satisfies veteran appeal (1) these in an private process, due balance courts Circuit, Court or the Federal fact interest; alone (2) deprivation the risk of erroneous deprive does not us of here. The value, any, extra safe- likely and the if Veterans Court has exclusive over interest, (3) guards; government’s Appeals, decisions the Board of Veterans’ especially avoiding addi- the burden being every capable not over issue raised in Mathews, impose. safeguards tional would appeal from the Board. See 38 U.S.C. 96 S.Ct. 893. U.S. at 7252(a). initial during phase, the claim which enunciated in cases such as Mathews to sel seriously Court found a “would process judged Supreme the effect that must the oft-repeated congressional it generality of cases to the by the which frustrate therefore, is process applies, and which the non-adversarial maintain purpose” to Walters, a majority of large sufficient for the administration. of bent defi- group of claims is constitutional Although 323, 105 S.Ct. 3180. at U.S. nition sufficient for all of them.” Wal- procedural restric- more VCS v. Nat’l Radiation Surviv- ters Ass’n attorney lack at of an just tions than ors, 305, 330, S.Ct. 473 U.S. Supreme stage, Regional Office (1985). L.Ed.2d a simi- compels in Walters analysis Court’s Moreover, although safe- the additional discovery, Subpoena power, lar outcome. re- likely seek would Plaintiffs guards hearings, presence pre-decision and of avoidable remands number duce paid attorneys would transform the VA’s deprivations, the fiscal erroneous and into an system of benefits administration ad- burdens these and administrative system that tend to re- would adversarial requirements are procedural ditional system litigation civil rigorous flect the seek, essence, significant. Plaintiffs quite plainly intended to Congress to transform the claims vigorous- choice a preclude. The between level process [Regional Office] ly system and a less adversari- adversarial an ostensibly from non-adversarial policy al one considerations reflects serious ceeding pano- into in which the full one must Congress one. permissible and a protects of trial civil ply procedures leeway to formu- be afforded “considerable litigants is to For available veterans. processes late” additional example, general Plaintiffs seek the administra- to VA’s cure deficiencies including right discovery, power being forced to tion “without of benefits documents, subpoena to witnesses code of rigid conform to a constitutional ability and cross-examine to examine Walters, procedural 473 U.S. necessities.” witnesses, attorney, an ability pay can- 105 S.Ct. Because VCS right Implemen- hearing. and the to a paramount not overcome the interest Con- system a tation and of such maintenance gress preserving has a non-adversarial re- costly would be in terms system of veterans’ benefits administra- the VA sources manpower tion, we affirm the ruling. district court’s [Regional would need to commit Office] proceedings. IV. CONCLUSION (footnotes omitted). complaint plaintive cry sounds did, emphasize, the district We as it has been to us. help, but misdirected Congress purposefully designed may expeditious As much we wish for system non-adversarial of benefits admin- way handles improvement in the VA Walters, istration. See 473 U.S. at mental health care service-related dis- (VA kept matters should be ability cannot exceed compensation, we “as informal possi- and nonadversarial as jurisdiction to accomplish our it. The ble”); see also Nat’l Ass’n Radiation “protects Constitution from our own us Derwinski, Survivors 588- (9th “dividing] power best intentions” Cir.1992) (“[I]n passing the [V]JRA sovereigns and among among branches Congress government’s reaffirmed the in- may so re- government precisely that we an [in terest informal benefits administra- ”). system].... temptation power tion sist the This is concentrate particularly pertains true as it expedient the retention of coun- one location as solution day.” crisis of the New York and shall not precedent by v. United be cited as States, 144, 187, S.Ct. court of the Ninth Circuit. Costs (1992). 120 L.Ed.2d 120 There can be no appeal awarded to Defendants-Appel- securing doubt exemplary care for lees.

our nation’s veterans is a moral impera- tive. But Congress and the SCHROEDER, President are Judge, Senior Circuit in position far better “to care for him who dissenting: battle, shall have borne the and for his “Let me if got straight: see I’ve this in orphan.” widow his Abraham Lin- order grounded, got to be I’ve to be coln, President of the United States of crazy I crazy keep and must be to flying. America, (Mar. Inaugural Second Address But if I ask to grounded, that means 4, 1865), available at http://www.loc.gov/rr/ crazy I’m more I have to program/bib/ourdocs/Lincoln2nd.html. We (Paramount keep flying.” Catchr-22 Pic- would work political counter to the branch- 1970), adaptation tures the novel of es’ own efforts undertaking the of type (1961). Joseph Heller institutional reform that requests. VCS I agree with the majority’s holding that responsibilities Such are left to Congress jurisdiction the district court had to con- Executive, and the and to those specific sider claim brought by plaintiff- courts charged federal with reviewing organizations veterans procedures actions; their that is the overriding mes- used in handling of filing the initial of VJRA, sage of the and it is one that we benefits claims are I inadequate. further respect must here. agree affirming the denial of that We conclude that the district court lacks merits, claim on the because what Plain-

jurisdiction statutory to reach VCS’s tiffs seek is inconsistent with the congres- process challenges alleged to the due de- purpose sional simplified, nonadversarial lays in the of mental health care Assoc, proceedings. See Walters v. Nat’l and to the of procedures absence to chal- Survivors, Radiation 473 U.S. lenge delays. such We likewise conclude (1985). S.Ct. 87 L.Ed.2d 220 jurisdiction that the district court lacks to agree Because I majority’s reach VCS’s to with the delays claims related disability holding of service-related that there is to consid- benefits. We conclude that the district er that claim of inadequate procedures, court has however, consider VCS’s I am majori- confounded alleged inadequacy of the ty’s holding that the district court lacked Regional level, at the Office jurisdiction to consider claims that other properly exercised that to procedural inadequacies causing are intol- deny claim on the merits.28 systemic delays erable process- the VA’s ing of benefits claims and in providing part, AFFIRMED in REVERSED in mental health services. While review of part, and REMANDED with instructions is, course, substantive benefits decisions panel opinion, DISMISS. The Shinseki, Common Sense v. limited to the Appeals Court of for Veter- (9th Cir.2011), (the hereby VACATED ans Claims Ap- “Court of Veterans 28. VCS seeking average days contends that the district court erred number of PTSD refusing compel discovery Regional of additional claims take at the level. Office But (some claims, instances of suicide incident disposed briefs because we have of VCS's already produced) which had been and refus- we not reach do VCS's to the dis- ing compel response interrogatory discovery to an rulings. trict court's Ap- of Veterans and the Court Appeals, under 38 Circuit the Federal

peals”) and and decide claims. delay process systemic peals utilize the claims of due view, alleges review of a denial not, my require complaint do delays allegedly decisions. unreasonable actual benefits cess because the VA’s property, Plaintiffs’ members deprive millions of vet- majority thus leaves of law. benefits, process without due i.e. and future —without present, past, erans — by show- a claim can be established Such they claims that any available redress depri- wrongful a risk of that there is ing rights to having their years delay face Eldridge, Mathews v. vation. See No one determined. hard-earned benefits 893, 319, 335, 47 L.Ed.2d 18 96 S.Ct. Congress just or what could think this is (1976). the dis- Accordingly, I conclude intended. all jurisdiction to consider trict court had dem- history of 511 language The com- alleged claims Plaintiffs’ of the Congress did to me that onstrate instead plaint. any forum to veterans without not leave majority’s in the fundamental flaw The way system operating. the is challenge the assumption reasoning to hear a is its mistaken court should be able The district systemic delay challenge, adjudication because 511 does of Plaintiffs’ systemic 511 is challenge. a Section examination pertain requires to such claims individualized It refers actual benefits decisions. Plain about determinations. of actual benefits necessary to of law and fact “questions not with the substance of tiffs’ concern is Secretary.” It then a the decision Their is decision. concern Secretary of the vides that the “decision routinely have con process. Courts subject question” such shall delay has claims excessive sidered Fed- by the courts and to review veterans See, process. in a denial of due resulted 7104(a), §§ 38 U.S.C. eral Circuit. See Loudermill, Bd. v. e.g., Cleveland of Educ. 7292(a). 7252(a), 7266(a), purpose The 1487, 532, 547, 105 S.Ct. 84 470 U.S. courts is to the administrative veterans (1985)(delay of administrative L.Ed.2d 494 are en- whether individual veterans decide point become a hearing would some The statute therefore titled to benefits. violation); Fusari v. Stein constitutional referring to an actual decision must be 379, 389, 533, 42 berg, 419 U.S. Secretary denying or bene- granting (1975) (length delay impor L.Ed.2d 521 fits. factor); Dep’t v. NYC tant Kraebel Pres, Dev., 395, 405 Congress’ Housing from use of 959 F.2d apparent This is (2d Cir.1992); provision City Schroeder v. Chica the term “decision” (7th Cir.1991) (“Jus Secretary give 957, a claimant requires the 960 go, 927 F.2d denied, Secretary un- justice saying notice “of a decision delayed tice affecting title delay ripen der section 511 of this must point and at some goes: to a claimant.” 38 provision of benefits otherwise a suit deprivation, into because 5104(a). must mean a deci- This pre would be forever alleging deprivation It can- granting denying benefits. Thurman, 528, sion mature”); 922 F.2d Coe v. delay making a a not include decision (9th Cir.1990) (delay ap in state 530-31 majori- decision. Yet that is senseless Donovan, 769 F.2d Rodrigues v. peal); 1025, n. 20. Op. at ty conclusion. See (9th Cir.1985); 1344, Kelly v. R.R. 1348-49 (3d Bd., F.2d 490-91 Cir. Ret. any “decision Plaintiffs do not 1980) (four delay reviewing disabil year injunc- Secretary.” Plaintiffs seek of the Indeed, the district court ity application). that the affecting tive relief claim of of Plaintiffs’ Offices, decide the merits Board of did Regional contrast, delay in the In have held unreasonable VA’s we veteran services, majority of mental and a health can sue in tort for three-judge panel it should held unrelated to his benefits determination. have fashioned some relief. Veterans States, Littlejohn See v. United 321 F.3d Shinseki, v. Common Sense (9th Cir.2003). Littlejohn, In Cir.2011). (9th plaintiff brought Federal Tort Claims (“FTCA”) against Act action VA doctors bemay There sound reasons for courts negligence. Id. at held 918. We there wary intruding to be much on too was because day-to-day operation of executive branch. Day, See Heckler v. the tort claim have would no effect his (1984). S.Ct. L.Ed.2d 88 But Id. at benefits award. §511 not be an should absolute bar to of other decisions circuits are in district court for claims of due States, accord. Weaver United process systemic denials on account of de- (10th Cir.1996), Tenth lay. principle majority which an- Circuit held that where the veteran tried contrary holding nounces for its is that to conspiracy sue the VA for and fraud in because of veterans cannot bring concealing records that in a resulted denial in constitutional district challenge benefits, of juris- district the court lacked decision, court that affect a might benefits Hicks, diction. in Like our decision Weav- way including processed. the it is The challenge er reflected indirect an support principle. case law not that does denial of Eighth benefits. The Circuit in law, it, The as I case understand reflects (8th Russell, Cir.1998) In re 155 F.3d 1012 a clear delineation between claims that (per curiam), a refused to issue writ of represent challenges or indirect direct to require mandamus to the to act VA courts decisions, actual benefits and which on a in request pending for benefits the jurisdiction lacking, district court and Relying Court of Appeals. Veterans claims that would have no on the effect Brown, (6th Beamon v. F.3d award, substance of actual benefit and Cir.1997), the Russell court reasoned that § 511 In thus where is no bar. the Ninth under the Veterans Judicial Review Act Circuit, in our decisions v. Tur- Chinnock Act, only and the All Court Writs the of (9th Cir.1993), nage, 995 F.2d 889 Appeals Circuit Federal had Small, (9th Cir.1995), Hicks v. F.3d 967 power require the to the to act with VA represent challenges direct and indirect to respect particular to a claim for benefits. decisions, proper- actual we benefits where 155 F.3d at 1012-13. ly found that court district was upon by majority Beamon is relied the Chinnock, lacking. plaintiff-veteran the is, support holding, to its but in Beamon brought challenge a in district direct court fact, my consistent with understanding of to asking the denial his benefits the a claim cases. Beamon concerned in interpretation court to review VA’s injunctive the district relief court regulation a resulted in denial. plaintiffs who their pursuing were individ- 995 F.2d at 890. We held district ual claims for in the VA adminis- Hicks, court jurisdiction. lacked Id. In trative courts. 125 F.3d at Sixth plaintiff a in filed Bivens action plain- Circuit held that under against VAa doctor for conduct that delay relief allegedly benefits, his tiffs’ avenue of from the reduced we held indirect, this a challenge, was also a albeit to each their cases was to seek writ of the denial of benefits. F.3d 968-70. mandamus from the Court of Veterans Act, challenges to hear to the All Writs have pursuant

Appeals facial 1651(a). Beamon, 125 F.3d benefits” legislation affecting See veterans’ (internal Circuit, however, did citation quotation The Sixth marks and at 968-70. omitted) to be a allegations Zuspann plaintiffs’ (emphasis original)); view the Cir.1995) (5th to challenge Brown, 1156, 1159 similar process due systemic v. (district us. It characterized jurisdiction over the one before court would have allegations” procedural Congress). “bare plaintiffs’ a facial act being “closer to delays as Applying principle, similar the D.C. decisions than constitu- benefit individual Mather, Broudy Circuit Id. procedures. attack on tional” (D.C.Cir.2006), held the district I it does not why That is believe 973 n. 5. claims of court had to consider majority’s conclusion support officials de- veterans who contended VA systemic here cannot sue for Plaintiffs right them their nied constitutional majority process. of due As denial pro- access administrative meaningful plain- recognize, op. at does alleged the VA ceedings. veterans individuals whose tiffs in Beamon were their accurate information about withheld not, primarily personal were interests thereby ren- exposure radiation and here, organizations whose concerns dered access VA administrative operation system must reflect meaningless. at 108-11. Ju- ceedings at- although majority Thus all cases. existed the case was risdiction because from the cases a rule tempts to draw they whether should have re- “not about concerning claim the VA’s conduct any their compensation ceived Government for the during proceedings benefits is outside sickness,” they but were denied whether court, jurisdiction of the the cases district access meaningful to administrative to actually challenges establish that the at ceedings before VA. Id. 108. cannot be particular benefits decisions Broudy The D.C. decision in Circuit’s in brought district court and must here, particularly instructive because courts. brought VA administrative there decisions in prior court reviewed its have, fact, The federal in re courts States, v. Price United 228 F.3d to peatedly entertained statutes (D.C.Cir.2000) curiam), (per and Thomas the conduct of VA affecting (D.C.Cir.2005). Principi, v. F.3d adjudication. Circuit in The Second majority These are decisions on which the American De Disabled Veterans in concluding here relies that 511 has Affairs, partment 962 F.2d Yet, nearly Broudy universal sweep. as (2d Cir.1992), 137-38 considered an actually those recognized, cases concern equal protection a that challenge to statute attempts guess to second actual benefits availability eliminated the of veterans’ fam at determinations. See 460 F.3d 114-15. in ily benefits certain circumstances. The Price, an veteran filed individual a jurisdiction Circuit held Second there was alleging in the district court that complaint equal protection challenge, to consider wrongfully him the VA failed to reimburse a constitu because consideration of such at expenses. for certain medical 228 F.3d any claim not tional did review of involve con- 421. The D.C. Circuit held even individual benefits Id. at that determination. Jones, 140-41; complaint a struing alleging see also his as federal Larrabee ex rel. (2d Cir.1992) fail- (reject negligent tort claim for intentional or bills, ing pay a care and ure to medical the district court inadequate that noting jurisdiction plaintiff “district courts continue to lacked because proceeding.” of a indirectly seeking was course benefits review his bene- fits determination. Id. at 422. Broudy expressly rejected This was 114. necessary predicate (that because “a argument [the had been government’s plaintiffs] claim [was] determination phrase on a used in Price and premised that in acted bad faith.” Id. [VA] Thomas) quoted any in that 511 barred determining Since whether the VA acted court procedural district consideration of faith, negligent, bad or was would re- relating matters conduct quire the court district to determine first proceedings. Id. 114r-15. relevant whether the VA acted in han- properly phrase those cases described 511’s reimbursement, dling request Price’s for preclusive scope encompassing “wheth- benefits, judicial i.e. proper awarded re- properly’ handling” er VA ‘acted 511(a). by view was foreclosed Id. The Id. at veterans claims benefits. court explained “the district court The Government had contended jurisdiction plain- [the lacked consider phrase properly” “acted meant the underlying tiffs] federal claim because district lacked consid- allegation claim an that the VA un- [was] challenged aspect suit er him justifiably denied a veterans’ benefit.” claims, handling including proce- Id. at 421. dures. Id. at 114-15. Thomas, Similarly, in had denied went Broudy D.C. Circuit benefits, individual veteran’s claim pains to make it clear some that the dis- a federal plaintiff-veteran and the filed tort trict court lacked review claim in court. F.3d at only the denying “actual decisions” bene- alleged He claims that the VA committed fits. The court said: by failing medical to inform malpractice 511(a) Section does give the VA him that he had mental illness and in exclusive to construe laws him medical failing provide ser- affecting of veterans ben- appropriate vices for his condition. efits or to consider all that issues court, Price, following that only The held might somehow touch upon whether allegations deprived those that the VA him someone receives veterans benefits. by 511, of medical care were barred Rather, simply gives it authori- VA because review of such claims would re- ty to questions consider such when quire the court to “district determine first benefits, making a ... decision about in properly provid- whether the acted and, question importantly more for the ing (quot- Thomas Id. at benefits.” 974-75 jurisdiction, prevents our district 422). Price, ing 228 F.3d The court reviewing Secretary’s courts from held it did have over decision made.... once failure-to-inform, they alleging because did not reviewing any involve issues decided (internal Broudy, quota- at 112 by in the the VA benefits determination. omitted) (empha- tion marks and citations Id. The Price and Thomas cases therefore in The has original). D.C. Circuit since sis majority. support do not interpretation confirmed this narrow § 511’s bar. Vietnam See Veterans Broudy The Circuit in later D.C. Shinseki, Am. v. 599 F.3d up summed it when it said (D.C.Cir.2010) (noting Broudy, it courts ques- “have to consider " only questions ‘explicitly deemed “that arising tions under affect laws that Secretary making a long of benefits so as the Secre- considered’ [in tary actually them in barred determination] has not decided benefits would be on the causal focused he could Veterans questions Vietnam or, alleged in the relationship of the harm presumably, to have decided’

‘deemed “average delay,” to the actual origi- complaint, in the implicitly (emphasis decided” nal)). harm individuals. 599 F.3d suffered no The court concluded there was 661-62. majority’s holding upshot The standing. confer nexus sufficient to causal systemic claims of de- respect to the reasoning majority accepts this Id. The go place have no lay is that veterans further to conclude goes much majority may claims. The adjudicate such delay must remedy systemic claim to a remedy an adequate that there is believe a to individual be treated as delay by means of indi- for unreasonable determinations, hence reviewable in the proceedings mandamus Court vidual Appeals the Veterans Court or the Federal Circuit Appeals of Veterans Circuit, condemning and thus vet- Federal administrative courts require the VA delays to suffer intolerable inherent erans n. Op. at 1028 promptly. act more system. in the VA extraordinary writ 1032. Yet such rarely granted. Erspamer v. Derwin- See majority’s holding thus reduces it- The (1990) ski, (declining 9-11 Vet.App. challenge delays a 22”: To self to “Catch that a concluding even after issue writ you systemic system, bring in the must delay years ten for benefits was unrea- just an claim. claim and not individual sonable). binding The writ is not claim, it you bring systemic But if has to question, than the case in see case other you an individual claim and be treated as Editorial, Inc. v. States Dist. Star United delays system. Get must suffer the Cir.1993) (rea- (9th Court, it?

soning grant that whether to the writ is case), on the facts of the individual based and thus would have no affect on the poten- apply cedures to the millions represented by tial claims these Plaintiffs. majority’s position appears to rest principally upon aspect another of the D.C. opinion

Circuit’s Vietnam WARD, Jack Richard Petitioner- in that case plaintiffs America. Appellant, appeals process framed their attack on the “average” delay, as an attack on rather CHAVEZ, Warden, Ricardo E. delay handling any par-

than on in the Respondent-Appellee. Am., ticular case. Vietnam Veterans of The court held that 661-62. No. 09-17016. injury plaintiff since no could show Appeals, United States Court delay, the “average” plaintiffs caused Ninth Circuit. standing to assert the claim. Id. at lacked 662. The court did not discuss whether Argued and Jan. Submitted plaintiffs might past use evidence of 8,May Filed delay of a aggregate to demonstrate risk wrongful deprivation property Mathews,

future. See S.Ct. 893.

Case Details

Case Name: Veterans for Common Sense v. Shinseki

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 7, 2012

Citation: 678 F.3d 1013

Docket Number: 08-16728

Court Abbreviation: 9th Cir.