Appellate attorney kicks the V.A.’s butt in 9th Circuit Court of Appeals

May 11th, 2011 , 4:05 pm

Today I picked up the L.A. Times and read the following headline, “Judges slam VA’s mental health care.”  Underneath that headline was the following, “Court orders overhaul of handling of PTSD, other ailments, citing a rate of 18 suicides a day for  returning vets.”  That was enough to pull me in.  The article reported that the 9th Circuit Court of Appeals ruled in a case against the Department of Veterans Affairs, finding the V.A. failed to care for those suffering from post-traumatic stress disorder.  In fact, their treatment delays were so “egregious” that they violated the veterans’ constitutional rights “and contribute[d] to the despair behind many of the 6,500 suicides among veterans each year.”  The reporter did the math and noted that amounted to an average of 18 vets per day.  Wow!  That’s an astounding number.  Seeing that number brings home the reality of war.

The 9th Circuit took nearly two years to issue a decision, in part because the court was attempting to push the parties to resolve the dispute through mediation.  No deal.  The decision was not unanimous; however, with Judge Kozinski dissenting.  He opined that even though the V.A.’s behavior might “shock and outrage” the court, it could not step in to tell the V.A. what to do.  That didn’t stop Judge Stephen Reinhardt, who wrote the opinion, nor did it stop Sr. Judge Procter Hug Jr. from stepping in to join in that opinion.  Judge Reinhardt wrote:

There comes a time when the political branches have so completely and chronically failed to respect the People’s constitutional rights that the courts must be willing to enforce them.  We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war.”

The case was filed by Veterans for Common Sense and Veterans United for Truth.  The lower court denied the groups’ claims on procedural grounds after a seven-day trial in 2008.  It concluded that it lacked the authority to tell the V.A. what to do.  The groups were represented by Gordon Erspamer, a San Francisco attorney who represented them pro bono.  Now some law firms allow associates or partners to work on pro bono cases, but you still have to have a lot of respect for someone who is willing to take on the government.  The V.A., through the Justice Department, had no comment and said it would be reviewing the ruling.

The reporter, Carol J. Williams, included the following statistics:  25 million vets in the U.S., including 1.6 million who served in Iraq and Afghanistan over the last ten years.  A Rand Institute study in 2008 reported that approximately 300,000 vets currently suffer from PTSD and major depression.  And why not?  Risking their lives on a daily basis?  Extended stays?  Seeing death and destruction everywhere?  Fear that has little chance to subside?

But rather than taking care of these vets within 30 days of requesting help, the V.A. ignored their applications for months and even years, or worse yet, denied them.  Tens of thousands were simply placed on a waiting list due to chronic shortages.  The ruling also referred to a 2007 report by the Office of the Inspector General that noted there were no suicide prevention officers at the V.A.’s 800-community-based outpatient clients, which is where most of the vets would receive their medical care.

It seems so odd to me that we have spent days celebrating the skills of our Navy Seals, who were successful in killing Osama bin Laden.  But our returning vets are heroes too.  They are the unsung heroes that faced death on a daily basis.  They certainly deserve better.  And it makes me proud that Mr. Erspamer persisted in his efforts to give them some assistance and to provide some light to the rest of us.  This is just shameful and the V.A. should have more than “no comment.”  These are the cases that renew my admiration of trial lawyers and the appellate lawyers who continue their fight!