Veterans for Common Sense v. Eric K. Shinseki

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VETERANS FOR COMMON SENSE, a 

District of Columbia nonprofit

organization; VETERANS UNITED FOR

TRUTH, INC., a California nonprofit

organization, representing their

members and a class of all

veterans similarly situated,

Plaintiffs-Appellants,

v.

ERIC K. SHINSEKI, Secretary of

Veterans Affairs; UNITED STATES No. 08-16728

DEPARTMENT OF VETERANS AFFAIRS;

JAMES P. TERRY, Chairman, Board  D.C. No.

3:07-cv-03758-SC

of Veterans’ Appeals; MICHAEL

WALCOFF, Acting Under Secretary, OPINION

Veterans Benefits Administration;

BRADLEY G. MAYES, Director,

Compensation and Pension

Service; ROBERT A. PETZEL, M.D.,

Under Secretary, Veterans Health

Administration; PRITZ K. NAVARA,

Veterans Service Center Manager,

Oakland Regional Office,

Department of Veterans Affairs;

UNITED STATES OF AMERICA,

Defendants-Appellees,



Appeal from the United States District Court

for the Northern District of California

Samuel Conti, District Judge, Presiding

6293

6294 VETERANS FOR COMMON SENSE v. SHINSEKI

Argued August 12, 2009

San Francisco, California

Submitted September 14, 2009

Filed May 10, 2011

Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Chief Judge Kozinski

6298 VETERANS FOR COMMON SENSE v. SHINSEKI

COUNSEL

Gordon P. Erspamer (argued), Heather A. Moser, Ryan G.

Hassanein, M. Natalie Naugle, and Stacey M. Sprenkel, Mor-

rison & Foerster LLP, San Francisco, California; and Sidney

M. Wolinsky, Ronald Elsberry, Katrina Kasey Corbit, and

Jennifer Bezoza, Disability Rights Advocates, Berkeley, Cali-

fornia, for the plaintiffs-appelants.

Michael F. Hertz, Acting Assistant Attorney General; Joseph

P. Russoniello, United States Attorney; and William Kanter

and Charles W. Scarborough (argued), Appellate Staff, Civil

Division, Department of Justice, for the defendants-appellees.

OPINION

REINHARDT, Circuit Judge:

On an average day, eighteen veterans of our nation’s armed

forces take their own lives. Of those, roughly one quarter are

enrolled with the Department of Veterans Affairs (“VA”)

health care system. Among all veterans enrolled in the VA

system, an additional 1,000 attempt suicide each month.

Although the VA is obligated to provide veterans mental

health services, many veterans with severe depression or post-

traumatic stress disorder (“PTSD”) are forced to wait weeks

for mental health referrals and are given no opportunity to

request or demonstrate their need for expedited care. For

those who commit suicide in the interim, care does not come

soon enough. Like the cavalry of Alfred, Lord Tennyson’s

“Charge of the Light Brigade,” these veterans may neither

“make reply” nor “reason why” to the “blunder” of those

responsible for their safety.

Veterans who return home from war suffering from psy-

chological maladies are entitled by law to disability benefits

VETERANS FOR COMMON SENSE v. SHINSEKI 6299

to sustain themselves and their families as they regain their

health. Yet it takes an average of more than four years for a

veteran to fully adjudicate a claim for benefits. During that

time many claims are mooted by deaths. The delays have

worsened in recent years, as the influx of injured troops

returning from deployment in Iraq and Afghanistan has placed

an unprecedented strain on the VA, and has overwhelmed the

system that it employs to provide medical care to veterans and

to process their disability benefits claims. For veterans and

their families, such delays cause unnecessary grief and priva-

tion. And for some veterans, most notably those suffering

from combat-derived mental illnesses such as PTSD, these

delays may make the difference between life and death.

In this context, two non-profit organizations, Veterans for

Common Sense and Veterans United for Truth (collectively

“Veterans”1), seek injunctive and declaratory relief to remedy

the delays in (1) the provision of mental health care and (2)

the adjudication of service-connected death and disability

compensation claims by the VA. Among other issues, Veter-

ans ask us to decide whether these delays violate veterans’

due process rights to receive the care and benefits they are

guaranteed by statute for harms and injuries sustained while

serving our country. We conclude that they do.

We do not reach this answer lightly. We would have pre-

ferred Congress or the President to have remedied the VA’s

egregious problems without our intervention when evidence

of the Department’s harmful shortcomings and its failure to

properly address the needs of our veterans first came to light

years ago. Had Congress taken the requisite action and ren-

dered this case unnecessary even while it was pending before

us, we would have been happy to terminate the proceedings

and enter an order of dismissal. Alternatively, had the VA

agreed with Veterans following oral argument to consider a

1

We use the term Veterans to refer to the two plaintiff organizations as

well as to their members throughout.

6300 VETERANS FOR COMMON SENSE v. SHINSEKI

practical resolution of the complex problems, the end result

surely would have been more satisfactory for all involved. We

joined in our dissenting colleague’s suggestion that we defer

submission of this case in order to permit the parties to

explore mediation, and we regret that effort proved of no

avail. We willingly acknowledge that, in theory, the political

branches of our government are better positioned than are the

courts to design the procedures necessary to save veterans’

lives and to fulfill our country’s obligation to care for those

who have protected us. But that is only so if those govern-

mental institutions are willing to do their job.

We are presented here with the question of what happens

when the political branches fail to act in a manner that is con-

sistent with the Constitution. The Constitution affirms that the

People have rights that are enforceable against the govern-

ment. One such right is to be free from unjustified govern-

mental deprivation of property — including the health care

and benefits that our laws guarantee veterans upon completion

of their service. Absent constitutionally sufficient procedural

protections, the promise we make to veterans becomes worth-

less. When the government harms its veterans by the depriva-

tions at issue here, they are entitled to turn to the courts for

relief. Indeed, our Constitution established an independent

Judiciary precisely for situations like this, in which a vulnera-

ble group, that is being denied its rights by an unresponsive

government, has nowhere else to turn. No more critical exam-

ple exists than when the government fails to afford its injured

or wounded veterans their constitutional rights. Wars, includ-

ing wars of choice, have many costs. Affording our veterans

their constitutional rights is a primary one.

There comes a time when the political branches have so

completely and chronically failed to respect the People’s con-

stitutional 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 VA’s unchecked incompetence has gone

VETERANS FOR COMMON SENSE v. SHINSEKI 6301

on long enough; no more veterans should be compelled to

agonize or perish while the government fails to perform its

obligations. Having chosen to honor and provide for our vet-

erans by guaranteeing them the mental health care and other

critical benefits to which they are entitled, the government

may not deprive them of that support through unchallengeable

and interminable delays. Because the VA continues to deny

veterans what they have been promised without affording

them the process due to them under the Constitution, our duty

is to compel the agency to provide the procedural safeguards

that will ensure their rights. When the stakes are so high for

so many, we must, with whatever reluctance, fulfill our obli-

gation to take this extraordinary step.2

We affirm the district court’s rulings with respect to Veter-

ans’s various claims for specific forms of relief under the

Administrative Procedure Act, including their claims for

system-wide implementation of various VA mental health

care initiatives and their claims for the alteration of disability

compensation adjudication procedures in VA regional offices.

We conclude, as did the district court, that the relevant provi-

sions of the Administrative Procedure Act prevent us from

granting Veterans the statutory relief that they seek. We

reverse, however, the district court’s rulings on Veterans’s

constitutional claims. We hold that the VA’s failure to pro-

vide adequate procedures for veterans facing prejudicial

delays in the delivery of mental health care violates the Due

Process Clause of the Fifth Amendment, and that the district

court erred when it found otherwise. We further hold that the

district court erred in concluding that it lacked jurisdiction to

review Veterans’s due process challenge to delays and proce-

dural deficiencies in the compensation claims adjudication

2

We emphasize that we are presented with grave questions of life and

death, and fundamental structural problems with the government’s fulfill-

ment of its duty to veterans. This is a serious matter, which deserves to

be taken seriously, rather than as an opportunity to employ military meta-

phors in a failed effort to entertain the reader.

6302 VETERANS FOR COMMON SENSE v. SHINSEKI

system, and that it erroneously denied Veterans the relief to

which they are entitled under the Due Process Clause. We

therefore affirm the district court in part, reverse in part, and

remand for further proceedings.

BACKGROUND

There are approximately 25 million veterans in the United

States. As of May 2007, roughly one-quarter of them were

enrolled for health care with the VA,3 the mission of which is

“to fulfill President Lincoln’s promise ‘To care for him, who

shall have borne the battle and for his widow and for his

orphan’ by serving and honoring the men and women who are

America’s veterans.”4 The VA has three branches: the Veter-

ans Health Administration (“VHA”), the Veterans Benefits

Administration (“VBA”), and the National Cemetery Admin-

istration (“NCA”). This case involves statutory and constitu-

tional challenges to the actions of two of those branches, the

VHA and the VBA.

I. Veterans Health Administration

Under Chapter 17 of Title 38 of the United States Code,

veterans have a statutory entitlement to hospital care and

other medical services. See 38 U.S.C. § 1710. This care is

provided by the Veterans Health Administration. The VHA is

required by law to provide free medical care to all veterans

who served in any conflict after November 1, 1998, for up to

five years from the date of separation from military service

3

The district court found these facts. We take judicial notice of the more

current official figures provided by the VA: 23 million veterans, of whom

one-third (8 million) are now enrolled for health care with the Veterans

Health Administration, and of whom 3 million receive disability benefits.

See VA Benefits & Health Care Utilization (July 30, 2010), available at

http://www1.va.gov/VETDATA/Pocket-Card/4X6_summer10_sharepoint

.pdf.

4

United States Department of Veterans Affairs, Mission Statement,

available at http://www4.va.gov/about_va/ mission.asp.

VETERANS FOR COMMON SENSE v. SHINSEKI 6303

for any medical condition, even if the condition is not attribut-

able to military service. 38 U.S.C. §§ 1710(e)(3)(C)(i);

1710(e)(1)(D). Medical services that the VHA is required to

provide to veterans include “medical examination, treatment,

and rehabilitative services.” 38 U.S.C. § 1701(6).

The VHA is also required, by statute, to provide readjust-

ment counseling and related mental health care services to eli-

gible veterans. See 38 U.S.C. § 1712A. The Secretary of

Veterans Affairs is required to “furnish counseling to the vet-

eran to assist the veteran in readjusting to civilian life. Such

counseling may include a general mental and psychological

assessment of the veteran to ascertain whether such veteran

has mental or psychological problems associated with read-

justment to civilian life.” 38 U.S.C. § 1712A(a)(1)(A). If a

veteran requests a “general mental health assessment” the VA

must provide such an assessment “as soon as practical after

receiving the request, but not later than 30 days after receiv-

ing the request.” 38 U.S.C. § 1712A(a)(3). If the physician or

psychologist who conducts the mental health evaluation deter-

mines that the veteran requires mental health services “to

facilitate the successful readjustment of the veteran to civilian

life” the veteran shall be “furnished such services.” 38 U.S.C.

§ 1712A(b)(1).

The VHA provides healthcare services to veterans via 21

regional Veterans Integrated Service Networks, which admin-

ister 153 VA hospitals (or medical centers), approximately

800 community-based outpatient clinics, and 200 Readjust-

ment Centers (or “Vet Centers”) throughout the United States.

The Secretary is required by statute to ensure that this health

care system is “managed in a manner to ensure that the provi-

sion of care to enrollees is timely and acceptable in quality.”

38 U.S.C. § 1705(b)(3).

Most veterans enrolled with the VA receive medical care at

the VHA’s community-based outpatient clinics. These clinics

do not provide mental health care services, even though an

6304 VETERANS FOR COMMON SENSE v. SHINSEKI

unprecedented number of newly-discharged veterans have

been diagnosed as suffering from mental disorders, in particu-

lar PTSD, as a result of military service in Iraq or Afghani-

stan. Approximately one out of every three soldiers returning

from Iraq was seen in a VHA facility for mental health related

treatment within a year of his return to the United States. The

total number of patients is high; since October 2001, more

than 1.6 million military personnel have served in Iraq or

Afghanistan, and as of the end of 2007, over 800,000 veterans

of the wars in Iraq and Afghanistan were eligible for VA

health care.

PTSD is a leading mental health disorder diagnosis for

those veterans.5 According to Dr. Arthur Blank, a psychiatric

expert who testified before the district court, this disorder is

a “psychological condition that occurs when people are

exposed to extreme, life-threatening circumstances, or [when

they are in] immediate contact with death and/or gruesome-

ness, such as [what] occurs in combat, severe vehicular acci-

dents or natural disasters. It produces a complex of

psychological symptoms which may endure over time.” Those

symptoms include anxiety, persistent nightmares, depression,

uncontrollable anger, and difficulties coping with work, fam-

ily, and social relationships. From 2002 to 2003 there was a

232 percent increase in PTSD diagnoses among veterans born

after 1972. A 2008 study by the RAND Institute shows that

18.5 percent of U.S. service members who have returned from

Iraq and Afghanistan currently have PTSD, and that 300,000

service members now deployed to Iraq and Afghanistan “cur-

rently suffer PTSD or major depression.” Delays in the treat-

ment of PTSD can lead to alcoholism, drug addiction,

homelessness, anti-social behavior, or suicide.

5

As the Commander-in-Chief recently acknowledged, PTSD is one of

the two “signature wounds of today’s wars.” President Barack Obama,

Remarks by the President in Address to the Nation on the End of Combat

Operations in Iraq (Aug. 31, 2010).

VETERANS FOR COMMON SENSE v. SHINSEKI 6305

Veterans in general face a heightened risk of suicide.

Studies show that suicide rates among veterans are much

higher than among the general population. One such study

considered by the district court, the “Katz Suicide Study” of

February 2006, found that suicide rates among veterans were

approximately 3.2 times higher than among the general popu-

lation. The author of that study, a senior physician and admin-

istrator at the VHA, also estimated that “[t]here are about 18

suicides per day among American’s 25 million veterans” and

that there are four to five suicides per day among veterans

currently receiving treatment from the VA. Dr. Katz subse-

quently noted that the VHA’s “suicide prevention coordina-

tors” had identified approximately 1,000 suicide attempts per

month among the veterans treated in VHA medical facilities.

In July 2004, the VA developed and adopted a five-year

Mental Health Strategic Plan to improve the provision of

mental health care services. One of its core objectives was to

“[r]educe suicides among veterans.” In May 2007, however,

the VA Office of Inspector General (“OIG”) issued a report

concluding that many components of the Mental Health Stra-

tegic Plan, including those relating to suicide reduction, had

not been implemented. Moreover, the district court record

shows that even in areas in which the VA has attempted to

follow the Mental Health Strategic Plan, the measures intro-

duced have fallen short of the Plan’s express goals. For exam-

ple, the Plan called for thorough mental health screening for

“[e]very returning service man/woman . . . as part of the post-

deployment and separation medical examination.” Mental

health screening is now a component of the primary health

care examination when veterans first enroll in the VA, but

that screening is not rigorous and does not always evaluate

veterans’ risk of suicide. Although veterans are screened for

PTSD, depression, traumatic brain injury, military sexual

trauma, and problem drinking, their risk of suicide is not auto-

matically assessed. All veterans who specifically present6 with

6

The intransitive verb “present” is used by healthcare professionals to

mean “to come before a physician (with a particular symptom, medical

history, etc.)” Webster’s New World College Dictionary (2010).

6306 VETERANS FOR COMMON SENSE v. SHINSEKI

mental health or addiction disorders are screened for suicide

risk, but just two questions are asked:

(1) “During the past two weeks, have you felt down,

depressed, or hopeless?”

(2) “During the past two weeks, have you had any

thoughts that life was not worth living or any

thoughts of harming yourself in any way?”

Veterans who answer “yes” to the first question, but “no” to

the second question are not given any further suicide risk

screening, unless they are being admitted to an inpatient psy-

chiatric unit.7

The May 2007 OIG report concluded that there was a wide-

spread absence of effective suicide prevention measures at

VHA facilities. The report found that 61.8 percent of VHA

facilities had not introduced a suicide prevention strategy to

target veterans returning from Iraq and Afghanistan and that

42.7 percent of such facilities had not introduced a program

to educate first-contact, non-medical personnel about how to

respond to crisis situations involving veterans at risk for sui-

cide. This report also found that 70 percent of VHA facilities

had not introduced a system to track veterans who presented

risk factors for suicide and 16.4 percent of VHA facilities had

not implemented a medical referral system for veterans with

risk factors. By 2009, each of the 153 VHA Medical Centers

had a suicide prevention officer, charged with overseeing the

clinical care of at-risk patients.8 There were, however, no sui-

cide prevention officers at any of the approximately 800

7

Although the record does not state explicitly that those who answer

“no” to both questions also receive no further treatment, even if they expe-

rienced frequent suicidal impulses previously, we note that this is also a

logical inference.

8

The district court noted that these officers receive just two and one half

days of special training for their role.

VETERANS FOR COMMON SENSE v. SHINSEKI 6307

community-based outpatient clinics, where most veterans

receive their medical care.

The effect of VHA’s failure to implement a systematic pro-

gram designed to reduce veterans’ risk of suicide has been

magnified by its failure to adopt measures to ensure that vet-

erans with mental health disorders are swiftly identified and

offered treatment. As the district court found, the May 2007

OIG report identified significant delays that prevented veter-

ans from obtaining timely physician referrals for the treatment

of depression and PTSD. For example, the report found that

where a primary care provider refers a veteran suffering from

depression with symptoms of moderate severity, only 40 per-

cent of VA facilities reported a same-day evaluation, whereas

24.5 percent of VA facilities reported a waiting period of two

to four weeks, and 4.5 percent of facilities reported a waiting

period of four to eight weeks. Similarly, only 33.6 percent of

VA facilities reported same-day evaluation for individuals

referred with symptoms of PTSD, while 26 percent reported

wait times of two to four weeks, and 5.5 percent reported wait

times of four to eight weeks. These extensive waiting times

can have devastating results for individuals with serious men-

tal illnesses.

The VA has acknowledged the crucial importance of timely

clinical treatment for individuals with mental illnesses, and

the district court record is replete with examples of state-

ments, both written and oral, by senior VHA physicians and

administrators underscoring the importance of timely medical

care. One such example is a memorandum written by William

Feeley, who, until April 2009, was the Deputy Under Secre-

tary for Health Operations and Management at the VHA. In

June 2007, he issued a memorandum instructing the directors

of all 21 Veterans Integrated Service Networks to begin

implementing the specific initiatives set forth in the 2004

Mental Health Strategic Plan, including those guaranteeing

timely mental health treatment. The memo instructed that a

veteran who presents with mental health issues for the first

6308 VETERANS FOR COMMON SENSE v. SHINSEKI

time at a medical center or community-based outpatient clinic

should be evaluated within 24 hours. It also provided that a

veteran who seeks an appointment for mental health issues

should be given a follow-up appointment within 14 days. Yet,

VA administrators testified before the district court during the

2009 trial that they had no reports showing that either initia-

tive mentioned in the Feeley memo had been implemented

system-wide. Indeed, the district court found that as of April

2008, approximately 85,450 veterans remained on VHA wait-

ing lists for mental health services.9

Veterans suffering from mental illnesses who are told that

they must wait for extended periods of time before receiving

treatment have little recourse. A veteran has neither the right

nor the opportunity to appeal an administrative decision to

place him on a wait list, if that decision is made by a clerical

appointment scheduler such as a medical center receptionist.

By contrast, a veteran may appeal a doctor or nurse’s clinical

decision that he must wait for a certain period of time before

receiving mental health care. To do so, he must complain to

a so-called “Patient Advocate,” an employee of the VHA

Medical Center at which the veteran was treated who is a col-

league of the doctor or nurse who placed the veteran on the

wait list. The Patient Advocate logs the veteran’s complaint

in a database and refers the complaint to the Medical Center’s

Chief of Staff, who must decide how to respond to the com-

plaint within seven days. If the veteran disagrees with the

Chief of Staff’s decision, he may further appeal to the Direc-

tor of the Veterans Integrated Service Network, who makes a

final decision on the veteran’s complaint. If the veteran dis-

agrees with the Director’s decision, he may ask the Director

9

These numbers may, however, significantly under-represent the num-

ber of veterans actually awaiting mental health care. During the trial

before the district court, the chief medical officer of the Veterans Inte-

grated Service Network in the Great Lakes Region testified that, in his

region, a veteran was only placed on the wait list for a mental health

appointment after he had already waited for 30 days to see a mental health

professional.

VETERANS FOR COMMON SENSE v. SHINSEKI 6309

to request an external review. The veteran himself may not

request such a review; only the Director may do so. More-

over, even if the Director does request an external review, the

veteran has no right to know the results of that review. The

veteran’s only way to independently learn the outcome of an

external review is to file request under the Freedom of Infor-

mation Act.

II. Veterans Benefits Administration

The Veterans Benefit Administration is the branch of the

VA responsible for veterans’ benefits programs, including

pensions and “Service-Connected Death and Disability Com-

pensation” benefits. Veterans with service-connected disabili-

ties — i.e., disabilities that are the result of a disease or injury

incurred through, or aggravated during, active military service

— are entitled to monetary benefits as compensation. See 38

U.S.C. § 1110; 38 C.F.R. § 3.303(d). Approximately 3.4 mil-

lion veterans currently receive monetary benefits from the

VBA. The district court found that many recipients of service-

connected death or disability compensation benefits are

totally or primarily dependent upon those benefits for finan-

cial support. The application procedures for such benefits are

complex, and the district court found that, in light of statistics

showing the limited formal education of the majority of recent

veterans, many of them may have difficulty applying for the

benefits to which they are entitled without substantial third-

party assistance.

A

The labyrinthine process of applying for benefits from the

VBA begins at one of the 57 VA Regional Offices located

throughout the United States. To apply for service-connected

disability compensation benefits, a veteran must complete a

23-page application and submit it to the VA Regional Office

in his area. In support of his application, the veteran must

present evidence of his disability, service in the military that

6310 VETERANS FOR COMMON SENSE v. SHINSEKI

would entitle him to benefits, and a nexus between the dis-

ability and the military service.10

The Veterans Claims Assistance Act, 38 U.S.C. § 5103,

states that the VBA has a “duty to assist” veterans, requiring

it to aid them in developing all evidence in support of their

disability claims. Under the Act, upon receipt of a veteran’s

benefits claim application, a VBA Veterans Service Represen-

tative must contact the veteran and notify him of any further

evidence that the VBA requires in order to adjudicate the

claim. Id. The Veterans Service Representative must send the

veteran a “duty to notify letter” detailing what information the

veteran is expected to provide and what evidence the VBA

will seek on his behalf under the Veterans Claims Assistance

Act. In accordance with its “duty to assist” under the Act, the

VBA must seek all government records that may pertain to

the claim, including, inter alia, service personnel and medical

records, VA medical records, and social security records. The

“duty to assist” also requires the VBA to undertake “reason-

able efforts” to acquire non-federal records, most notably pri-

10

A veteran whose claim includes PTSD must additionally provide

proof of a “stressor” event that occurred during his military service. See

38 C.F.R. § 3.304(f)(1) (“if the evidence establishes that the veteran

engaged in combat . . . and the claimed stressor is related to that combat,

in the absence of clear and convincing evidence to the contrary . . . the vet-

eran’s lay testimony alone may establish the occurrence of the claimed in-

service stressor.”) According to Ronald Aument, formerly Deputy Under

Secretary for Benefits, this additional requirement renders PTSD-based

disability benefit claims among the most difficult claims that the VA adju-

dicates. Specifically, the district court found that veterans often make mis-

takes completing their application forms and submitting evidence in

support of their disability claims, and veterans suffering from PTSD had

a particularly hard time furnishing the information properly. We note,

however, that the VA recently amended its regulations “by liberalizing in

some cases the evidentiary standard for establishing the required in-

service stressor” to make it simpler for veterans to file claims for PTSD

based on stressors “related to the veteran’s fear of hostile military or ter-

rorist activity.” Stressor Determinations for Posttraumatic Stress Disorder,

75 Fed. Reg. 39,843, 39,843 (July 13, 2010); see 38 C.F.R. § 3.304(f)(3)

(2010).

VETERANS FOR COMMON SENSE v. SHINSEKI 6311

vate medical records identified by the veteran, if the veteran

furnishes the VBA with a signed release form. Veterans have

60 days to respond to the “duty to notify letter” and to furnish

the VBA with any applicable releases.

Section 5103A of the Veterans Claims Assistance Act

states that the VBA’s “duty to assist” also includes “providing

a medical examination or obtaining a medical opinion when

such an examination or opinion is necessary to make a deci-

sion on the claim.” 38 U.S.C. § 5103A. This medical exami-

nation is intended to confirm that a disability exists and to

assess the medical implications of that disability in order to

assist the claim adjudicator in determining the percentage the

veteran will be considered disabled pursuant to the VBA’s

rating schedule. The VBA arranges and pays for Compensa-

tion and Pension Examinations, and the current wait time for

such examinations is approximately 30-35 days. Individuals

who have been treated for a recognized disability, such as

PTSD, at a VHA medical facility may nonetheless be required

to undergo a Compensation and Pension Examination. More-

over, a veteran who has been previously diagnosed by a phy-

sician at a VHA medical center as having PTSD, may

nonetheless be diagnosed as not having PTSD during a VBA

Compensation and Pension Examination.

Once all of the evidence in support of a veteran’s service-

connected disability compensation benefits claim has been

gathered, a Rating Veterans Service Representative (known as

a “rating specialist”) decides whether the veteran’s disability

is service connected, and, if it is, assigns a rating to his claim.

Approximately 88 percent of all ratings claims are at least

partially granted. The rating given operates on a sliding scale

from zero percent disabled to 100 percent disabled, with

increases at ten percent increments. Compensation currently

ranges from $123 per month for a ten percent rating to $2,673

per month for a 100 percent rating. 38 U.S.C. § 1114.

6312 VETERANS FOR COMMON SENSE v. SHINSEKI

During the pendency of a veteran’s claim to his local VBA

Regional Office, he is statutorily barred from paying a lawyer

to represent him. See 38 U.S.C. § 5904. He may, however, be

represented by a pro bono attorney or a representative from a

Veterans Service Organization — a non-profit organization

that is dedicated to working on behalf of veterans.11

If a veteran disagrees with the rating accorded him by the

ratings specialist in his local Regional Office he may appeal.

The multi-phase appeals process is, however, extremely diffi-

cult to navigate, especially for those suffering from mental

disabilities such as PTSD, and embarking upon an appeal may

delay a veteran’s receipt of benefits for many years.

A veteran may initiate his appeal of a rating specialist’s rat-

ing decision by filing an informal Notice of Disagreement

with his local Regional Office, or by filing a direct appeal to

the Board of Veterans’ Appeals with that Regional Office. A

Notice of Disagreement may be filed within one year of the

issuance of the VBA Regional Office’s ratings decision. The

veteran may appeal any part of the rating decision, including

the denial of a ground of disability, the percentage of the dis-

ability assigned to the veteran, or the effective date of the dis-

ability. During the appeals process, the veteran’s record

remains open, and the veteran may submit additional evidence

at any time.

When a Regional Office receives a Notice of Disagreement

from a veteran it sends the veteran an election letter asking

the veteran to choose between two non-exclusive appeals pro-

cesses: (1) de novo review of his claim by a Decision Review

11

VSOs are not affiliated with the VA. The district court found that in

some cases, the VA provides VSOs with office space in its VBA Regional

Offices, computer systems, and access to VA databases. The court also

found, however, that the VA does not provide training to VSOs regarding

how to assist veterans, and that all of the VSOs combined cannot meet the

needs of all the veterans seeking benefits.

VETERANS FOR COMMON SENSE v. SHINSEKI 6313

Officer (a senior ratings specialist) who is empowered to

reverse the initial rating decision if he believes that it is not

warranted; or (2) issuance of a Statement of the Case by the

Regional Office, providing a more detailed rationale for the

underlying ratings decision, to be used in a formal appeal to

the Board of Veterans’ Appeals. See 38 U.S.C. § 7105. A vet-

eran is entitled to retain paid counsel at this stage of the pro-

ceedings. See 38 U.S.C. § 5904.

If the veteran elects de novo review by a Decision Review

Officer, and that officer resolves some, but not all of the

appeal, or if the officer fails to resolve the appeal, a Statement

of the Case will be prepared and the veteran may pursue a for-

mal appeal to the Board of Veterans’ Appeals. If the veteran

decides to file a formal appeal with the Board, the veteran

must file a VA Form 9 with his local Regional Office within

60 days of receiving the Regional Office’s Statement of the

Case, or within a year of receiving the Regional Office’s rat-

ing decision, whichever is longer. See 38 U.S.C. § 7105(d)(3).

The Regional Office must then certify the veteran’s appeal to

the Board of Veterans’ Appeals. 38 C.F.R. § 19.35.

A veteran who disagrees with the Board’s decision can fur-

ther appeal the decision to the Court of Appeals for Veterans

Claims (“Veterans Court”), an independent Article I court

created by the Veterans’ Judicial Review Act of November

18, 1988, Pub. L. No. 105-687.12 A veteran claimant must file

a notice of appeal with the Veterans Court within 120 days of

the Board of Veterans’ Appeals’ final decision. 38 U.S.C.

§ 7266(a). He may then further appeal an adverse decision by

the Veterans Court to the U.S. Court of Appeals for the Fed-

eral Circuit, which has authority to “decide all relevant ques-

tions of law,” 38 U.S.C. § 7261(a), and he may ultimately

12

The Court of Appeals for Veterans Claims has seven judges, who are

appointed by the President and confirmed by the Senate to serve a fifteen-

year appointment.

6314 VETERANS FOR COMMON SENSE v. SHINSEKI

petition for certiorari in the Supreme Court of the United

States.

B

More than 830,000 ratings claims are filed with the VBA

each year. On April 12, 2008, there were 400,450 claims for

service-connected death and disability compensation pending

before the VBA. The district court found that approximately

11 percent of all ratings claims lead to a Notice of Disagree-

ment being filed by a veteran and four percent of all ratings

claims proceed to an appeal to the Board of Veterans’

Appeals.

Throughout the appeals process, veterans (or their surviv-

ing relatives) seeking service-connected death and disability

compensation are constrained by various time limits, and a

failure to timely file at any point in the process can result in

forfeiture of the appeal.13 In contrast, the VBA is not subject

to any statutory or regulatory time limits at any step of the

process.

Veterans experience long delays in the consideration and

adjudication of service-connected death and disability claims,

particularly when such claims are appealed. The VBA’s stated

goal is to process all initial ratings claims within 125 days.

The district court found, however, that it takes, on average,

182 days for a regional office to issue an initial decision on

a veteran’s claim for service-connected death and disability

compensation. Indeed, as of April 12, 2008, there were

101,019 rating-related claims that had been pending for over

13

Following the Supreme Court’s recent decision in Henderson ex rel.

Henderson v. Shinseki, 131 S. Ct. 1197 (2011), the 120-day deadline

within which veterans may file an appeal from the Board of Veterans’

Appeals to the Veterans Court is no longer treated as jurisdictional. Id. at

1206. The deadline is nevertheless strict, and it remains unclear whether

it is subject to equitable tolling or any other exception. Id. at 1206 & n.4.

VETERANS FOR COMMON SENSE v. SHINSEKI 6315

180 days. The district court found that, because of the inher-

ent complexities in proving a PTSD diagnosis, service-

connected death and disability compensation claims that are

based on PTSD take longer to adjudicate than other “average”

claims.

In cases in which a veteran files a Notice of Disagreement

with a Regional Office, the district court found that in 2008

it took approximately 261 days for a Regional Office to mail

a Statement of the Case to the veteran. In some cases, veter-

ans had to wait more than 1,000 days for the Regional Office

to issue the Statement of the Case. The district court found

that upon receipt of the Statement of the Case, it took the vet-

eran 43 days, on average, to file a Form 9 substantive appeal.

The district court then found that it took 573 days, on average,

for the Regional Office to certify an appeal to the Board of

Veterans’ Appeals upon receipt of the veteran’s Form 9 — a

merely ministerial act. Some veterans have had to wait more

than 1,000 days for the Regional Office to certify their appeal

to the Board.

The district court found that veterans who appeal directly

to the Board wait, on average, 336 days for the Board to issue

a decision in their cases. Some veterans elect to have a hear-

ing — at their own expense — in front of a Board of Veter-

ans’ Appeals judge. Those veterans who receive hearings are

more likely to prevail on their appeal, but they must wait an

average of 455 days for that hearing.

For veterans who pursue an appeal by filing a Notice of

Disagreement with the Regional Office’s initial decision,

seeking a Statement of the Case, and then file an appeal with

the Board, the district court found that it takes on average

1,419 days (3.9 years) from the veteran’s initial filing of the

Notice of Disagreement to the veteran’s receiving a decision

from the Board. It therefore takes approximately 4.4 years

from the date of the veteran’s initial filing of a service-

connected death and disability compensation claim to the final

6316 VETERANS FOR COMMON SENSE v. SHINSEKI

decision by the Board (not including any time that may have

elapsed between the Regional Office’s initial rating decision

and the veteran’s filing of his Notice of Disagreement, which

may be up to one year).

During the district court proceedings in this case, senior

VA officials were questioned about the extraordinary delays

in the VBA’s claims adjudication appeal system. None of

those officials, however, was able to provide the court with a

sufficient justification for the delays incurred. Bradley Mayes,

the Director of Compensation and Pension Services at the

VBA, testified at a deposition that the VBA had not “made a

concerted effort to figure out what [wa]s causing” the lengthy

delays in its resolution of the appeals of veterans claims for

service-connected death and disability compensation. And at

trial, James Terry, the Chairman of the Board of Veterans’

Appeals, was unable to explain the lengthy delays inherent in

the appeals process before the Board.

The record before the district court suggests that errors

made by ratings specialists at the Regional Office level play

a significant role in the lengthy delays that veterans experi-

ence in the adjudication of their claims. On average, the

Board affirms a Regional Office’s disposition of a case only

40 percent of the time, grants a veteran’s appeal 20 percent of

the time, and remands the case to the VBA for further pro-

ceedings in 40 percent of cases. Between 19 and 44 percent

of these remands are so-called “avoidable remands,” defined

as occurring when “an error is made by the R[egional] O[f-

fice] before it certifies the appeal to the B[oard].” The district

court found that almost half of the “avoidable remands”

between January 1, 2008, and March 31, 2008, occurred as a

result of violations by VBA employees of their duty to assist

veterans. Approximately 75 percent of the claims that are

remanded by the Board of Veterans Appeal are subsequently

appealed to the Board a second time. The district court found

that it takes the Board, on average, 149 days to render a sec-

VETERANS FOR COMMON SENSE v. SHINSEKI 6317

ond decision on a claim that it has already remanded once to

the VBA.

The district court found that, following remand, it takes the

VBA an average of 499.1 days to grant or withdraw a service-

connected death and disability compensation claim, or to

return it once again to the Board. It takes even longer, on

average, for PTSD claims to be processed on remand — 563.9

days. Many veterans suffering from serious disabilities,

including PTSD, suffer substantial and severe adverse conse-

quences as a result of this lengthy delay. In just the six

months between October 2007 and April 2008, at least 1,467

veterans died during the pendency of their appeals.

III. History of the Case

On July 23, 2007, Veterans for Common Sense and Veter-

ans United for Truth filed a complaint in the district court

seeking declaratory and injunctive relief, on behalf of them-

selves, their members, and a putative class composed of all

veterans with PTSD who are eligible for or receive VA medi-

cal services, and veteran applicants for and recipients of

service-connected death or disability compensation benefits

based upon PTSD. In the complaint, Veterans raised numer-

ous statutory and constitutional challenges to the procedures

the VA employs in its provision of health care services and

adjudication of benefits claims.14

With respect to the VHA’s duty to provide veterans with

mental health care, the Veterans challenged the following

VHA practices and procedures, which, they claim, violate vet-

erans’ statutory entitlements and constitutional right to due

process:

14

Not all of these claims are maintained on appeal, and this opinion

addresses only those that are.

6318 VETERANS FOR COMMON SENSE v. SHINSEKI

(1) VHA mental health care waiting lists are

extremely long, resulting in lengthy delays and in

some cases “the absence of any care,” and there are

no transparent procedures in place for a veteran to

appeal his placement on such a waiting list

(2) Mental health care is unavailable or inaccessible

at some VHA facilities and there are no procedures

in place to improve accessibility

(3) The VHA has no procedure through which Veter-

ans can obtain expedited relief in urgent cases such

as an imminent suicide threat

(4) The VHA had delayed implementing governmen-

tal recommendations for improve procedures per-

taining to clinical care and education

With respect to the VBA’s duty to provide veterans with

service-connected death and disability benefits, the Veterans

challenged the constitutionality of the following VBA prac-

tices and procedures:

(1) The VBA acts as both the trier of fact and adver-

sary at the Regional Office stage of the adjudication

of claims for service-connected death and disability

compensation claims

(2) There are no neutral judges or trial-like proce-

dures at the VBA Regional Office stage of the adju-

dication of claims for service-connected death and

disability compensation claims

(3) There is no procedure through which veterans

may obtain discovery to support SCDDC claims

(4) There is no procedure whereby a veteran might

compel the attendance of any VA employees or most

VETERANS FOR COMMON SENSE v. SHINSEKI 6319

other witnesses to testify and support their claims at

service-connected death and disability compensation

claim hearings

(5) There is no class action procedure available in

front of the VA

(6) The Veterans Court has a limited role and is

unable to award injunctive or declaratory relief

(7) There is no judicial authority or mechanism to

enforce judicial decisions or to require the agency of

original jurisdiction (the Regional Offices of the

VBA) to obey or comply with the rule of law

(8) The attorney’s fee prohibition of 38 U.S.C.

§ 5904(c)(1) and the related provision for criminal

penalties, 38 U.S.C. § 5905 prejudice veterans by

curtailing their ability to bring suit

Veterans therefore sought declaratory and injunctive relief.

Veterans asked the district court to declare, among other

things, that:

(1) The challenged VA practices, including the lack

of procedures to remedy delays in the provision of

medical care and treatment, violate Veterans’s right

to due process

(2) Veterans are not barred from pursuing remedies

in the federal courts

(3) The VA has a mandatory obligation to provide

medical care to returning veterans under 38 U.S.C.

§ 1710(e)(1)(D)

Veterans sought to compel the VA to:

6320 VETERANS FOR COMMON SENSE v. SHINSEKI

(1) Implement the recommendations of the Mental

Health Strategic Plan

(2) Implement the recommendations of the Feeley

Recommendation

(3) Provide free medical care to all returning veter-

ans for the maximum period specified in 38 U.S.C.

§ 1710(e)(1)(2) (5 years)15

(4) Expand the VHA clinical appeals process to

allow for appeals of administrative scheduling delays

for the provision of mental health care

And Veterans sought to enjoin the VA from:

(1) Permitting very protracted delays in the provision

of medical care to individuals with PTSD and in the

adjudication of PTSD benefits claims

(2) Destroying, altering, or doctoring records in vet-

erans’ claim files

(3) Prematurely denying PTSD and other service-

connected death and disability compensation claims

(4) Allowing Washington, DC-based officials to

assert extra-judicial pressure and influence upon the

adjudication of individual claims by VA Regional

Offices

The VA filed a motion to dismiss, which the district court

15

Veterans’s complaint states that this period is “two years.” The statute,

however, specifies that the relevant period is five years. See 38 U.S.C.

§ 1710(e)(1)(D), (e)(3)(C)(i). The district court correctly found “that this

language create[s] an entitlement to health care for veterans for five years

after separation from active duty.”

VETERANS FOR COMMON SENSE v. SHINSEKI 6321

denied. After Veterans moved for a preliminary injunction on

their mental health care claims, the district court held an evi-

dentiary hearing. Instead of ruling on the motion for a prelim-

inary injunction, the district court deferred its ruling and

merged the hearing with a trial on the merits, which began six

weeks later. The trial addressed both Veterans’s mental health

care claims and their compensation adjudication claims.

Veterans objected to the expedited trial schedule and limi-

tations on discovery, and the district court overruled the

objections. To meet the advanced trial date, the district court

created a modified, expedited discovery schedule. On appeal,

Veterans challenge two discovery rulings — one relating to

the production of suicide incident briefs and the other relating

to an interrogatory concerning the average length of time to

process a PTSD compensation claim at the initial Regional

Office level — which are addressed further in the Analysis,

infra. Veterans argue that, in each instance, they were sub-

stantially prejudiced by the district court’s ruling.

The district court held a seven-day bench trial. Two months

later, the district court issued a thorough Memorandum of

Decision, Findings of Fact and Conclusions of Law. Veterans

for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Cal.

2008). The district court concluded that Veterans had standing

to bring suit on behalf of their members, because the interests

at stake in the case were germane to the purposes of both

organizations, both organizations’ members had suffered inju-

ries in fact, there was a causal connection between the injuries

and the VA’s conduct, and the relief sought would likely

result in the amelioration of the injuries. 563 F. Supp. 2d at

1077 (citing Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 181 (2000); Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561 (1992)).16

(Text continued on page 6323)

16

We agree with the district court’s conclusion on this point, and the

government does not challenge it. Veterans’ members would individually

have standing; the “interests [they] seek[ ] to protect are germane to the

6322 VETERANS FOR COMMON SENSE v. SHINSEKI

organization[s’] purpose[s]”; and because their challenge is a systemic one

seeking prospective relief — not an attack on past, individual benefits

determinations — “neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” See Hunt

v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343

(1977).

We note that in a recent case, the D.C. Circuit concluded that a different

veterans’ organization did not have standing to bring a suit against the

VBA on behalf of its members because the suit expressly sought judicial

review of “the average processing time at each stage of the claims pro-

cess.” Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 662 (D.C. Cir.

2010). The D.C. Circuit, noting that “an association has standing to sue

only if one member would have standing on his or her own right,” inter-

preted the organization’s claim as not seeking relief for an injury to any

individual member of the organization, because “the average processing

time does not cause affiants injury; it is only their processing time that is

relevant.” Id.

Here, by contrast, Veterans complain of a variety of injuries actually

being experienced or likely to be experienced in the near future by their

members, including stalled disability claims pending in the VBA, and

mental health that is deteriorating in the absence of treatment by the VHA.

They allege that those injuries are caused by the VA’s systemic failures,

particularly the lack of adequate procedures for processing veterans

requests for health care from the VHA or claims adjudication by the VBA,

and that appropriate procedural safeguards would redress their members’

injuries by ensuring that the services and benefits to which they are enti-

tled are delivered before it is too late — i.e., before their illnesses worsen

or result in their deaths, and before their families are financially ruined.

Veterans do rely upon average waiting times, among much other data and

evidence, to illustrate those failures, but, unlike in Vietnam Veterans, Vet-

erans do not allege that the “average” wait times themselves cause their

members’ injuries. Rather, they argue that it is the absence of constitution-

ally required procedural safeguards that causes those injuries and the high

risk of future injury. In a suit for prospective relief, that potential for

immediate harm is sufficient to establish organizational standing. See, e.g.,

Florida State Conference of NAACP v. Browning, 522 F.3d 1153, 1160

(11th Cir. 2008) (“When the alleged harm is prospective, we have not

required that the organizational plaintiffs name names [of individual mem-

bers] because every member faces a probability of harm in the near and

definite future.”) (emphasis added). Veterans may represent their members

VETERANS FOR COMMON SENSE v. SHINSEKI 6323

The district court nonetheless denied each of Veterans’s

claims. With respect to their APA challenge to the VHA’s

untimely and/or ineffective healthcare appeals procedures and

the inadequacies of the implementation of the Mental Health

Strategic Plan, the court concluded that Veterans’s claim did

not pertain to a discrete, “final agency action,” and thus it

could not be raised under the APA. See 5 U.S.C. §§ 704,

706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55

(2004). Moreover, the court found that 38 U.S.C. § 1710

“commits decisions about the provision of medical care to the

Secretary’s discretion,” and that “courts [have] no meaningful

standards against which to judge the agency’s exercise in dis-

cretion.” Finally, the court found insufficient evidence of

system-wide delays in the provision of mental health care to

support a determination that agency action was “unreasonably

delayed” under the APA, even if the VA’s action were

reviewable.

The district court further ruled that it did not have jurisdic-

tion to order the VA, within 150 days, to fully implement the

Mental Health Strategic Plan, because Veterans’s request was

barred by the APA for three separate reasons. First, the dis-

trict court considered Veterans’s complaint to be one pertain-

ing to the manner and speed with which the plan had been

implemented — the sufficiency of an agency action, rather

interests now; individual members need not wait to bring individual claims

until it is too late to obtain meaningful relief. Cf. Sandusky County Demo-

cratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (“[Plaintiff

organizations] have not identified specific voters who will seek to vote at

a polling place that will be deemed wrong by election workers, but this is

understandable . . . . [A] voter cannot know in advance that his or her

name will be dropped from the rolls, or listed in an incorrect precinct, or

listed correctly but subject to a human error by an election worker who

mistakenly believes the voter is at the wrong polling place. It is inevitable,

however, that there will be such mistakes. The issues [plaintiffs] raise are

not speculative or remote; they are real and imminent.”). Veterans have

simply done a better job alleging the facts required to establish their stand-

ing than did the plaintiff organization in Vietnam Veterans.

6324 VETERANS FOR COMMON SENSE v. SHINSEKI

than a complaint about the agency’s failure to act. Second,

because the MHSP “consists of 265 recommendations” the

district court found it “dubious” that it could be characterized

as “discrete agency action” and found that such “recommen-

dations” were not “actions the VA ‘is required to take.’ ”

Third, and finally, the district court found that as the MHSP

was a five-year plan and was, at the time of the court’s ruling,

in its fourth year of implementation, it was still ongoing, and

thus was not a final agency action. The district court used the

same rationale to reject Veterans’s request that it order the

VA to fully implement the recommendations of the Feeley

memo within 150 days.

As to Veterans’s due process challenge to the VHA’s fail-

ure to provide timely care, the district court found no constitu-

tional violation. It reasoned that while veterans presenting

with mental health emergencies are not treated immediately

“every time,” Veterans “did not prove a systemic denial or

unreasonable delay in mental health care.” The court deemed

adequate the VA’s clinical appeals process, which struck “an

appropriate balance between safeguarding the veteran’s inter-

est in medical treatment and permitting medical treatment

without overly burdensome procedural protections.”

The district court also denied each of Veterans’s claims

pertaining to benefits adjudication. The district court con-

cluded that 38 U.S.C. § 511 prevented it from reviewing

delays in the adjudication of individual veterans’ claims, and

“the issue of whether a veteran’s benefits claim adjudication

has been substantially delayed will often hinge on specific

facts of that veteran’s claim.” Furthermore, it concluded that

if it were to provide the injunctive relief that Veterans sought,

including ordering the VBA to shorten its average wait times,

“such an order would invariably implicate VA regulations,”

which are subject to judicial review in the Federal Circuit

only under 38 U.S.C. § 502.

The district court further concluded that neither the delays

in adjudicating service-connected death and disability com-

VETERANS FOR COMMON SENSE v. SHINSEKI 6325

pensation benefits claims, nor the lack of procedural protec-

tions for individuals making such claims, was unreasonable

under the APA or violative of due process. While the court

found these delays “significant” and did not “dispute that the

health and welfare of veterans is at stake,” it determined that

it could not find the delays “unreasonable” under the APA

because Congress had established no specific timetable for

claims adjudication and because the delays resulted, in part,

from “the VA’s decision to emphasize initial claim adjudica-

tion at the expense of appeals.” Finally, the court found no

due process violation because “ ‘[d]elay is a factor but not the

only factor’ ” in “ ‘determining when due process is no longer

due process because past due.’ ” (Quoting Wright v. Califano,

587 F.2d 345, 354 (7th Cir. 1978)).

Ultimately, the district court concluded that the remedies

sought by Veterans were beyond its power “and would call

for a complete overhaul of the VA system, something clearly

outside of this Court’s jurisdiction.” The district court there-

fore denied Veterans’s request for a permanent injunction,

and granted judgment in favor of the VA. Veterans timely

appealed.17

ANALYSIS

I

We begin by confirming our jurisdiction to hear Veterans’s

constitutional claims.18

17

The district court denied Veterans’s request for injunctive relief based

upon its answers to questions of law, so we review its decision de novo.

See Gathright v. City of Portland, 439 F.3d 573, 576 (9th Cir. 2006). We

rely on the facts as they were found by the district court, except to the

extent those findings were clearly erroneous. Preminger v. Peake, 552

F.3d 757, 765 n.7 (9th Cir. 2008).

18

For the reasons that are set forth below, the agency actions Veterans

challenge under the Administrative Procedure Act are not reviewable

under the terms of that statute, so we need not consider other bars to

review of those claims.

6326 VETERANS FOR COMMON SENSE v. SHINSEKI

A. Sovereign Immunity

By seeking an injunction against the VA and its agencies,

Veterans have brought suit against the federal government.

The federal government has historically enjoyed immunity

from suit, notwithstanding that the principle of sovereign

immunity derives from the English legal notion that “the King

can do no wrong”; this surely was not a principle that those

who fought for our country’s independence happily imported

into our legal system. Nevertheless, it is well-established that

“the United States cannot be lawfully sued without its consent

in any case.” United States v. Lee, 106 U.S. 196, 205 (1882).

The VA does not assert that it is immune from suit over Vet-

erans’s constitutional claims, but we address the issue because

the district court determined that sovereign immunity pre-

cluded consideration of those claims.

[1] We hold that sovereign immunity does not bar adjudi-

cation of Veterans’s constitutional claims, because Congress

has expressly waived such immunity. The second sentence of

§ 702 of the APA states:

An action in a court of the United States seeking

relief other than money damages and stating a claim

that an agency or an officer or employee thereof

acted or failed to act in an official capacity or under

color of legal authority shall not be dismissed nor

relief therein be denied on the ground that it is

against the United States or that the United States is

an indispensable party.

5 U.S.C. § 702. As the Supreme Court has held with regard

to this provision, “complaints [for] declaratory and injunctive

relief [are] certainly not actions for money damages.” Bowen

v. Massachusetts, 487 U.S. 879, 893 (1988). Veterans’s

prayers for declaratory relief and an injunction thus fit

squarely within this waiver.

VETERANS FOR COMMON SENSE v. SHINSEKI 6327

The district court nonetheless found that “waiver of sover-

eign immunity under § 702 of the APA is limited by § 704.”

Section 704 states, in relevant part, “Agency action made

reviewable by statute and final agency action for which there

is no other adequate remedy in a court are subject to judicial

review.” The district court reasoned that because the delays

Veterans challenge are neither made reviewable by any statute

nor a “final agency action,” even their constitutional claims

fall outside of § 702’s waiver of sovereign immunity. This

was error. Whether the challenged delays constitute “final

agency action” is an inquiry that is relevant to Veterans’s

claims under the APA itself, which are addressed below. But

§ 704 in no way limits § 702’s broad waiver of sovereign

immunity with respect to suits for injunctive relief against the

federal government — suits for which the APA itself is not

the cause of action.

In Presbyterian Church (U.S.A.) v. United States, 870 F.2d

518 (9th Cir. 1989), we held that “§ 702’s waiver of sovereign

immunity is [not] limited to instances of ‘agency action’ ” as

defined by the APA. Id. at 525. We found that the first sen-

tence of § 702 does address “agency action” specifically: “A

person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. § 702. But we determined that the waiver

of sovereign immunity in the second sentence, which was

added to the statute in 1976, “contains no such limitation.”19

19

Reviewing the legislative history of the 1976 amendment, we

explained:

Congress observed that before the amendment to § 702, litigants

seeking such nonmonetary relief were forced to resort to the

“legal fiction” of naming individual officers, rather than the gov-

ernment, as defendants an approach that was “illogical” and “be-

cloud[ed] the real issue whether a particular governmental

activity should be subject to judicial review, and, if so, what form

of relief is appropriate.” The need to channel and restrict judicial

6328 VETERANS FOR COMMON SENSE v. SHINSEKI

Presbyterian Church, 870 F.2d at 525. To the contrary,

“[n]othing in the language of the amendment suggests that the

waiver of sovereign immunity is limited to claims challenging

conduct falling in the narrow definition of ‘agency action.’ ”

Id. We therefore found that sovereign immunity had been

waived as to the Church’s First and Fourth Amendment chal-

lenges to surveillance conducted by the Immigration and Nat-

uralization Service in its congregations, even though the

INS’s investigations did not constitute “agency action” under

the APA. Id.

The district court noted, however, that nine years after

Presbyterian Church, we stated summarily: “[T]he APA’s

waiver of sovereign immunity contains several limitations. Of

relevance here is § 704, which provides that only ‘[a]gency

action made reviewable by statute and final agency action for

which there is no other adequate remedy in a court, are sub-

ject to judicial review.’ ”20 Gallo Cattle Co. v. Department of

Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998). But it is

Presbyterian Church and not Gallo Cattle that controls

where, as here, a plaintiff ’s challenge is constitutional and

thus not dependent on the APA for a cause of action.

control over administrative agencies, Congress concluded, could

better be achieved through doctrines such as statutory preclusion,

exhaustion, and justiciability, rather than through “the confusing

doctrine of sovereign immunity.” Accordingly, § 702 was

designed to “eliminate the defense of sovereign immunity as to

any action in a Federal court seeking relief other than money

damages and stating a claim based on the assertion of unlawful

official action by an agency or by an officer or employee of the

agency.”

Presbyterian Church, 870 F.3d at 524 (internal citations and footnote

omitted) (citing H. Rep. No. 1656, 94th Cong., 2d Sess. 5, reprinted in

1976 U.S.C.C.A.N. 6121, 6123-6130). We assumed that the “legal fiction”

referred to by Congress was that created by Ex parte Young, 209 U.S. 123

(1908), and its progeny. Presbyterian Church, 870 F.3d at 524 n.7.

20

Gallo Cattle did not cite Presbyterian Church or any other authority

for this holding.

VETERANS FOR COMMON SENSE v. SHINSEKI 6329

The first and second sentences of § 702 play quite different

roles, each one significant. The first sentence entitles

aggrieved individuals to “judicial review of federal agency

action.” The second sentence, added to the statute decades

later, waived sovereign immunity for “[a]n action in a court

of the United States seeking relief other than money damages

. . . .” One such action, of course, is a suit for “judicial review

of federal agency action” of the sort authorized by the first

sentence. But other actions exist too. Injunctions may be

sought, for example, to enforce the Constitution itself; courts

need no statutory authorization to undertake constitutional

review. See, e.g., Bell v. Hood, 327 U.S. 678, 684 (1946)

(“[I]t is established practice for this Court to sustain the juris-

diction of federal courts to issue injunctions to protect rights

safeguarded by the Constitution . . . .”).

Gallo Cattle considered a challenge to an agency order

denying the plaintiffs preliminary relief while they adjudi-

cated the merits of their petition before an administrative

board — that is, interim relief to which the plaintiffs believed

themselves entitled by statute and the agency’s regulations.21

Id. at 1198-1200. The plaintiffs sought “judicial review of

agency action” not because it was unconstitutional, but

because it violated the rules governing the agency. For that

type of suit, the plaintiffs’ cause of action was the APA itself,

so we applied § 704’s limitation on what agency action is

reviewable — meaning subject to “judicial review” under the

first sentence of § 702 — and concluded that because § 704’s

terms were not satisfied, the first sentence of § 702 did not

authorize judicial review. Consequently, sovereign immunity

could not be waived because the plaintiffs failed to bring a

21

The plaintiff ’s claim on the merits before the administrative board

concerned a First Amendment challenge. Gallo Cattle, 159 F.3d at 1196.

That claim was not before the court, however. The plaintiffs appealed only

from the agency’s denial of its request “to pay [the challenged] assess-

ments into escrow pending a decision on the merits of the petition” — a

matter solely of the agency’s procedure for adjudicating disputes through

its administrative process. Id.

6330 VETERANS FOR COMMON SENSE v. SHINSEKI

cognizable “action” in court. Id. at 1198 (addressing the

“waiver of sovereign immunity in suits seeking judicial

review of a federal agency action under [28 U.S.C.] § 1331”)

(emphasis added)).

[2] As in Presbyterian Church, the plaintiffs here raise a

constitutional challenge, which does not depend on the cause

of action found in the first sentence of § 702. Section 704’s

limitation of that first sentence is thus inapplicable, and the

district court’s reliance on Gallo Cattle was incorrect.22

Instead, because Veterans have brought “[a]n action in a court

of the United States seeking relief other than money dam-

ages” that arises under the Constitution itself, as in Presbyte-

rian Church, we find that sovereign immunity has been

waived by § 702’s second sentence.

We find additional support for this conclusion in a decision

of the D.C. Circuit that rejected similar arguments to those

made by the government and accepted by the district court

here. In Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), that

court declined to adopt the FTC’s position that “(1) the waiver

[of sovereign immunity under § 702] applies only to actions

arising under the APA; and (2) since review under APA § 704

is limited to ‘final agency action,’ the waiver of sovereign

immunity is similarly restricted to conduct that falls within

that compass.” Id. at 186. Undertaking an analysis identical to

ours in Presbyterian Church, the court determined that “noth-

22

While incorrect, the district court’s confusion was reasonable. The

district court cited Gros Ventre Tribe v. United States, 469 F.3d 801 (9th

Cir. 2006), a prior decision of this court that discussed both Presbyterian

Church and Gallo Cattle and observed in passing that it “saw no way to

distinguish” the two cases. Id. at 809. The Gros Ventre Tribe court ulti-

mately resolved the case on other grounds. For the reasons just provided,

we find Presbyterian Church and Gallo Cattle readily distinguishable:

Presbyterian Church concerns § 702’s waiver of sovereign immunity as

to constitutional challenges, while Gallo Cattle concerns challenges under

the APA itself. Section 704 constrains only the latter situation, and it is the

former type that we are presented with here.

VETERANS FOR COMMON SENSE v. SHINSEKI 6331

ing in the language of the second sentence of § 702 . . .

restricts its waiver to suits brought under the APA,” and thus

the waiver applied to the plaintiff ’s First Amendment claim

there. Id. Moreover, the court “h[e]ld that the waiver applies

regardless of whether the [agency’s challenged conduct] con-

stitutes ‘final agency action’ ” under § 704. Id. at 187 (citing

Presbyterian Church, 870 F.2d at 525). This is consistent with

our holding that § 702’s waiver of sovereign immunity

applies more broadly than to actions under the APA itself. We

therefore hold that, as to Veterans’s constitutional claims for

“relief other than money damages,” § 702 waives sovereign

immunity regardless of whether the claims arise from “agency

action” as defined by the APA.23

B. The Veterans Judicial Review Act

The Veterans Judicial Review Act (“VJRA”) prohibits judi-

cial review of “the decision of the Secretary [of Veterans

Affairs] as to any” “question[ ] of law and fact necessary to

a decision by the Secretary under a law that affects the provi-

sion of benefits by the Secretary to veterans or the dependents

or survivors of veterans.” 38 U.S.C. § 511(a). The VA argues

that this provision precludes us from considering Veterans’s

second constitutional challenge, concerning the procedure for

the adjudication of claims for disability benefits. The dissent

goes even further and suggests that the VJRA forecloses our

ability to decide Veterans’s first constitutional challenge,

regarding delays in mental health care services, as well. We

disagree as to both challenges, and shall explain why below

in the context of each claim.

23

We note that even if we did not find a waiver of sovereign immunity

here, Veterans’s constitutional challenge could proceed against all individ-

ual defendants under Ex Parte Young — precisely the fiction for which

Congress sought to eliminate the need in adding the second sentence of

§ 702.

6332 VETERANS FOR COMMON SENSE v. SHINSEKI

II

We first address Veterans’s statutory and constitutional

claims concerning the delays in VHA’s provision of mental

health care. The number of veterans diagnosed as suffering

from mental illnesses, and the percentage of those who are

awaiting treatment, is simply staggering. As of April 2008, at

least 85,450 veterans were languishing on VHA waiting lists

for mental health care — a number that may significantly

under-represent the scale of the problem both then and now.24

The urgent need to provide veterans with the mental health

care to which they are entitled is clear, not least in light of the

high suicide rate among this vulnerable population. In the

absence of procedures designed specifically to safeguard vet-

erans’ rights to timely, effective treatment, veterans are suf-

fering and dying, heedlessly and needlessly.

Veterans contend that the introduction of a formal appeals

process to allow a veteran to contest an administrator’s deci-

sion to place him on a waiting list for mental health care, of

more transparent clinical appeals procedures, and of a proce-

dure permitting veterans with PTSD to seek expedited access

to mental health care in acute cases, would save lives. The

district court ruled that Veterans have no recourse in the fed-

eral courts to contest the VA’s systematic failure to provide

veterans with procedures safeguarding their access to the

mental health care to which they are statutorily entitled. In

some respects, the district court is correct. In others, it erred

in so ruling. Although our power is limited under the APA

and we cannot grant Veterans the relief they seek as to their

statutory challenge, we hold that their constitutional right to

due process has been violated, reverse the district court’s rul-

ing in this respect, and remand this appeal for further proceed-

ings.

24

As noted earlier, supra note 9, some veterans are not even placed on

formal waiting lists until they have already waited for a month.

VETERANS FOR COMMON SENSE v. SHINSEKI 6333

A. APA Challenge to Mental Health Care Delivery

Delays

Given the provisions of the APA and controlling Supreme

Court law, the district court properly denied Veterans’s APA

challenge to the VHA’s delays in providing timely and effec-

tive mental health care, notwithstanding the many evident

deficiencies in the VHA’s provision of such care.

Under the APA, courts are empowered to “compel agency

action unlawfully withheld or unreasonably delayed.” 5

U.S.C. § 706(1). In Norton v. Southern Utah Wilderness Alli-

ance, however, the Supreme Court interpreted the scope of

this statutory provision and held that “a claim under § 706(1)

can proceed only where a plaintiff asserts that an agency

failed to take a discrete agency action that it is required to

take.” 542 U.S. 55, 64 (2004). With regard to the discreteness

requirement, the Court stated that the “failure to act” is “prop-

erly understood as . . . a failure to take one of the agency

actions (including their equivalents) earlier defined in [5

U.S.C.] § 551(13).” Id. at 62. Agency actions defined in 5

U.S.C. § 551(13) include issuance of a rule, order, license,

sanction, relief or equivalent benefit. The Norton Court sug-

gested that, for example, “the failure to promulgate a rule or

take some decision by a statutory deadline” would constitute

the failure to take a discrete agency action. Norton, 542 U.S.

at 63.

An agency action may therefore be reviewed and com-

pelled by a federal court under § 706(1) only if that action is

one which is legally required. Id. Quoting the Attorney Gen-

eral’s Manual on the APA, the Norton Court stated “§ 706(1)

empowers a court only to compel an agency ‘to perform a

ministerial or non-discretionary act,’ or ‘to take action upon

a matter, without directing how it shall act.’ ” Id. at 64 (quot-

ing Attorney General’s Manual on the Administrative Proce-

dure Act 108 (1947)). In limiting APA review to required

agency actions, the Court held, Congress “rule[d] out judicial

6334 VETERANS FOR COMMON SENSE v. SHINSEKI

direction of even discrete agency action that is not demanded

by law” under the APA. Id. at 65.

Veterans assert here that the VA has unreasonably delayed

the provision of timely and effective mental health care to eli-

gible veterans by failing to implement the Mental Health Stra-

tegic Plan and the Feeley Memorandum. Implementation of

the Plan and Memorandum would undoubtedly improve the

lot of veterans who are suffering unduly as a result of delays

in the provision of their mental health care. Such implementa-

tion does not, however, fall within the definition provided by

the Supreme Court in Norton of a “discrete action” that the

agency is “required” to take, because no statute or regulation

demands it. Veterans contend that the VA is statutorily

required to provide timely and acceptable medical care under

38 U.S.C. § 1710(a) and 38 U.S.C. § 1705. True, but those

requirements are not so specific as the particular action Veter-

ans seek to compel.

In relevant part, 38 U.S.C. § 1710 requires that the VA fur-

nish hospital care and medical services to certain veterans:

The Secretary . . . shall furnish hospital care and

medical services which the Secretary determines to

be needed—

(A) to any veteran for a service-connected disability;

and

(B) to any veteran who has a service-connected dis-

ability rated at 50 percent or more.

38 U.S.C. § 1710(a)(1). Veterans “who served on active duty

in a theater of combat operations . . . after November 11,

1998” are eligible for health care and services for five years

following discharge. 38 U.S.C. § 1710(e)(1)(D), (e)(3)(C)(i).

Section 1705(a) then obligates the Secretary “[i]n managing

the provision of hospital care and medical services under sec-

VETERANS FOR COMMON SENSE v. SHINSEKI 6335

tion 1710(a)” to prescribe, establish, and operate a system of

annual patient enrollment. In designing this “enrollment sys-

tem,” the Secretary “shall ensure that the system will be man-

aged in a manner to ensure that the provision of care to

enrollees is timely and acceptable in quality . . . .” 38 U.S.C.

§ 1705(b)(1).

[3] Veterans claim that § 1705(a) creates an obligation to

ensure that the VHA as a whole is managed so as to provide

timely care of acceptable quality. We agree. We disagree,

however, with Veterans’s contention that this statutory obliga-

tion mandates the implementation of the Mental Health Stra-

tegic Plan and the Feeley Memorandum, which Veterans

characterize as the VA’s “own determination of what § 1710

requires.” Such a reading overstates the reach of the specific

provisions of § 1705 — particularly in light of the fact that

Veterans have not filed any direct challenge to the Secretary’s

management of the enrollment system itself.

[4] The VA does not dispute that it is required to provide

mental health care to certain veterans. Nor should it dispute

that a delay in providing necessary mental health care would

amount to a wholesale failure to provide care to at-risk veter-

ans under § 1710 and § 1705, insofar as some at-risk veterans

will take their own lives during the delay. The VA is, thus,

obviously required to take action to ensure that, system-wide,

mental health care is provided to at risk veterans in a timely

manner. There is, however, no statutory language that would

specifically obligate the VA to fully implement the remedies

sought by Veterans — the Mental Health Strategic Plan or the

Feeley Memorandum. We are therefore bound by the

Supreme Court’s instruction in Norton that: “General defi-

ciencies in compliance, unlike the failure to issue a ruling . . .

lack the specificity requisite for agency action.” Norton, 542

U.S. at 66.

As the Norton Court recognized, however, agencies may be

required to take actions not only by Congress, but also by

6336 VETERANS FOR COMMON SENSE v. SHINSEKI

themselves. Agency action “demanded by law . . . includes,

of course, agency regulations that have the force of law.” Nor-

ton, 542 U.S. at 65. Even a less formal agency “plan” may “it-

self create[ ] a commitment binding on the agency,” if there

is “clear indication of binding commitment in the terms of the

plan.” Id. at 69, 71. Thus we have held that “agencies may be

required to abide by certain internal policies,” such as their

own “internal procedures.” Alcaraz v. INS, 384 F.3d 1150,

1162 (9th Cir. 2004) (citing Morton v. Ruiz, 415 U.S. 199,

235 (1974)).

Veterans argue that the Mental Health Strategic Plan and

Feeley Memorandum are such required internal policies. But

neither document supports that view. The Plan was designed

to “identif[y] overlap, include[ ] gap analyses, and present[ ]

goals and objectives that articulate a set of proposed strategies

that directly support all the mental health needs of the

enrolled veteran population.” The VA cast the Plan’s particu-

lar strategies as “recommendations.” Nowhere did the agency

commit to binding itself, and we do not find any implied

intent to do so.

The Feeley Memorandum, by contrast, does impose the

affirmative obligation that procedures to ensure veterans

receive mental health evaluations within twenty-four hours of

seeking help “must be implemented by August 1, 2007.” But

the memorandum — a document sent from the Deputy Under

Secretary for Health for Operations and Management to the

VA’s Network Directors — is an internal administrative com-

munication that lacks the force of law. See Rank v. Nimmo,

677 F.2d 692, 698-99 (9th Cir. 1982). Unlike an internal rule

that is officially published within an agency and binding on

its employees, for example, the Memorandum is merely a

charge from a supervisor to his subordinates.

[5] Veterans’s APA claim concerning timely and accept-

able mental health care therefore cannot proceed because Vet-

erans do not assert that the VA “failed to take a discrete

VETERANS FOR COMMON SENSE v. SHINSEKI 6337

agency action that it is required to take” within the meaning

of § 706(1), Norton, 542 U.S. at 64, and so we affirm the dis-

trict court’s ruling on Veterans’s APA-based challenge.

B. Due Process Clause Challenge to Mental Health Care

Delivery Delays

Veterans also claim that the lack of adequate procedures to

ensure that veterans will not suffer needlessly because of

severe delays in the receipt of mental health care violates the

Due Process Clause of the Fifth Amendment. We agree.

1

We first consider whether the VJRA deprives us of juris-

diction to consider this claim. We note at the outset that while

the VA argues vigorously that the VJRA forecloses our con-

sideration of Veterans’s second due process claim, regarding

the disability benefits adjudication process, it does not con-

tend that it affects this claim at all. To the contrary, the VA

acknowledges that “the general nature of plaintiffs’ claims —

which asserted ‘systemic’ delays in the provision of health

care” — falls outside the VJRA’s jurisdictional bar to “chal-

lenges to the medical care or other benefits provided in spe-

cific cases.” Gov’t Br. 33 n.7. A potential jurisdictional flaw

is not a litigant’s issue to waive, of course, so we must con-

sider the issue ourselves notwithstanding the parties’ agree-

ment. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).

Still, because the sole participant in this case to even suggest

that the VJRA precludes review of Veterans’s constitutional

challenge to the mental health care delays is our dissenting

colleague, we discuss the issue only briefly.

Section 511(a) provides,

The Secretary shall decide all questions of law and

fact necessary to a decision by the Secretary under

a law that affects the provision of benefits by the

6338 VETERANS FOR COMMON SENSE v. SHINSEKI

Secretary to veterans or the dependents or survivors

of veterans. . . . [T]he decision of the Secretary as to

any such question shall be final and conclusive and

may not be reviewed by any other official or by any

court, whether by an action in the nature of manda-

mus or otherwise.25

The “question of law” presented here is whether the VA’s

lack of procedural safeguards to ensure that veterans timely

obtain the mental health care to which they are entitled —

such as an appeals process to challenge appointment schedul-

ing — violates the Due Process Clause by providing insuffi-

cient process. It is debatable whether that question of law is

one that is “necessary to a decision by the Secretary” affect-

ing veterans’ benefits, like the question of what evidence is

required to make out a benefits claim for service-connected

PTSD. See, e.g., Stressor Determinations for Posttraumatic

Stress Disorder, 75 Fed. Reg. 39,843, 39,843 (July 13, 2010);

see 38 C.F.R. § 3.304(f)(3) (2010). We need not resolve the

issue of necessity, however, because the Secretary has not

actually issued a “decision” answering this constitutional

question at all. The VA may assume and even argue that its

system for providing mental health care services is constitu-

tionally sound, but it has not issued a “decision” on the ques-

tion that is “final and conclusive and” unreviewable, the way

it might issue, for example, a “rating decision” concerning a

particular veteran’s degree of disability for purposes of calcu-

lating compensatory benefits. See 38 U.S.C. § 1156(b)(1)(B).

The dissent argues that “there is simply no way to adjudi-

cate the due process claim without ‘determining first’ whether

the VA’s administrative staff ‘acted properly in handling’ vet-

25

Section 511(b) provides for four exceptions, none applicable here: (1)

the review of VA rules and regulations under § 502, (2) suits in district

court concerning claims related to federally provided insurance, (3) suits

under specific provisions relating to housing and small business loans, and

(4) review by the Board of Veterans’ Appeals and the Veterans Court.

VETERANS FOR COMMON SENSE v. SHINSEKI 6339

erans’ requests for appointments,” which “will depend on the

facts of each veteran’s case” — which we may not review.

Dissenting op. at 6383 (quoting Price v. United States, 228

F.3d 420, 422 (D.C. Cir. 2000) (per curiam) and citing

Thomas v. Principi, 394 F.3d 970, 974 (D.C. Cir. 2005))

(internal alterations omitted)). But of course there is: Veterans

challenge the lack of adequate procedural safeguards to

ensure that veterans receive timely care. To make out that

claim they must simply demonstrate “the risk of an erroneous

deprivation” of care “through the procedures [currently] used,

and the probable value, if any, of additional of substitute pro-

cedural safeguards.” Mathews v. Eldridge, 424 U.S. 319, 335

(1975) (emphasis added). Veterans need not, and do not, seek

to relitigate in federal court whether VA staff actually “acted

properly in handling” individual veterans’ requests for

appointments, dissenting op. at 6383; no individual veteran is

before us seeking to challenge the timing of an individual

appointment that he just received. Rather, Veterans point to

the past as evidence of the “risk of an erroneous deprivation”

their members now face.

Put differently, this is not a tort suit brought by an individ-

ual veteran, as in the two cases cited by the dissent, where

“underlying the claim is an allegation that the VA unjustifi-

ably denied him a veterans’ benefit.” Thomas, 394 F.3d at 974

(emphasis added). The relevant “decision[s]” as to “ques-

tion[s] of law and fact” in those cases were “decision[s]”

about individual benefit determinations, which were insulated

from review as soon as the Secretary had made those “deci-

sion[s].” Instead, this is a suit for an injunction to require that

“additional or substitute procedural safeguards” be provided

in the future, if the cost to the government of such safeguards

is justified by the reduction in risk they would produce.

Mathews, 424 U.S. at 335. The relevant “decision” here as to

a “question of law” is whether the existing safeguards are

constitutionally sufficient; the Secretary has not rendered a

“decision” on that question, so the triggering condition for

§ 511’s preclusive effect does not now exist — assuming the

6340 VETERANS FOR COMMON SENSE v. SHINSEKI

Secretary’s answer to a “question of law” such as this could

ever fit within the meaning of “decision,” which is most

unlikely. See infra, at 6355. The VA is not mistaken in under-

standing that the nature of Veterans’s suit falls outside the

reach of § 511(a).

2

[6] We turn, then, to the merits of Veterans’s due process

claim. The record before us shows that some veterans with

severe depression or PTSD are forced to wait over eight

weeks for mental health referrals. During that period, some of

those veterans take their own lives. The district court found

that there are about 18 suicides per day among veterans,

including four to five suicides per day among veterans

enrolled to receive VA health care.26 In 2008, one VHA physi-

cian identified “about 1,000 suicide attempts per month”

among the veterans seen in VHA facilities.27 The precise con-

26

The VA’s statistics do not differentiate between veterans who are sim-

ply enrolled with the VA, veterans who are receiving other types of (non-

mental health related) medical treatment, veterans who are on waiting lists

for mental health treatment, and veterans currently receiving mental health

care.

27

This figure comes from an email written by the Deputy Chief of

Patient Care Services for VA’s Office of Mental Health on February 13,

2008. The email read as follows:

Shh!

Our suicide prevention coordinators are identifying about 1000

suicide attempts per month among the veterans we see in our

medical facilities. Is this something we should (carefully) address

ourselves in some sort of release before someone stumbles on it?

That email was obtained by Veterans during discovery in this litigation,

and first made public as a result. This message and others like it generated

significant media attention. See, e.g., Armen Keteyian, VA Hid Suicide

Risk, Internal E-Mails Show, CBS News (Apr. 21, 2008), available at

http://www.cbsnews.com/stories/2008/04/21/cbsnews_investigates/main

4032921.shtml. That attention, in turn, prompted a congressional investi-

gation. See The Truth About Veterans’ Suicides, Hearing Before the H.R.

Comm. on Veterans Affairs, 110th Cong., 2d Sess. (May 6, 2008).

VETERANS FOR COMMON SENSE v. SHINSEKI 6341

stitutional question with which we are presented is whether

the VA’s delays in the provision of care amount to a depriva-

tion of “property” without due process, a violation of the Fifth

Amendment.

a

[7] First we must find that Veterans allege a deprivation of

life, liberty, or property. As we discuss above, 38 U.S.C.

§ 1710 creates an entitlement to health care for eligible veter-

ans. The VA does not dispute that this entitlement creates a

property interest protected by the Due Process Clause. Indeed,

it is well-established that “the interest of an individual” in

receipt of government benefits or services to which he is enti-

tled “is a statutorily created ‘property’ interest protected by

the Fifth Amendment.” Mathews, 424 U.S. at 332.

b

Second, we must determine whether Veterans’s members

have been deprived of their property interest. In cases involv-

ing the termination of government benefits, the “deprivation”

is clear. See, e.g., Goldberg v. Kelly, 397 U.S. 257 (1970).

Similarly, we have long held that the outright denial of bene-

fits to which an individual is entitled constitutes deprivation

The dissent gets political reality exactly backwards when it asserts that

“Congress already exercises vigorous oversight of the VA through its abil-

ity to hold hearings on the agency’s operations,” and that “[b]ecause Con-

gress is already actively involved in the agency’s affairs, programmatic

improvements should be made in the offices of the VA or the halls of Con-

gress, not through litigation.” Dissenting op. at 6397 (internal quotation

marks and brackets omitted). To the contrary, this case demonstrates the

crucial role for litigation initiated by injured parties in forcing the govern-

ment to respond. Had the resulting oversight then yielded actual solutions,

this case might have become moot. It is only because the government con-

tinued to fail to correct the VA’s problems that we are compelled to

address the constitutional questions presented here.

6342 VETERANS FOR COMMON SENSE v. SHINSEKI

of a recognized property interest. See, e.g., Nat’l Ass’n of

Radiation Survivors v. Derwinski, 994 F.2d 583, 588 n.7 (9th

Cir. 1992) (denial of application for veterans’ benefits impli-

cates due process); Griffeth v. Detrich, 603 F.2d 118, 120-21

(9th Cir. 1979). Veterans’s claim differs somewhat. They

argue not that their members’ requests for care have been

decided by the VA and finally rejected, but instead that the

delay in the provision of care sought “is tantamount to a

denial of care,” particularly for veterans who are suicidal. We

agree.

In a related context, the Supreme Court has recognized that

“the possible length of wrongful deprivation of . . . benefits

is an important factor in assessing the impact of official action

on . . . private interests.” Fusari v. Steinberg, 419 U.S. 379,

389 (1975). Thus in Fusari, the Court found that excessive

delay in the adjudication of claims for unemployment bene-

fits, during which time benefits were withheld, could yield a

deprivation in its own right regardless of whether benefits

were ultimately restored. And in Cleveland Board of Educa-

tion v. Loudermill, 470 U.S. 532 (1985), the Court reasoned

that “[a]t some point, a delay in [a] post-termination hearing

would become a constitutional violation,” though that point

had not been reached in that case. Id. at 547; see also Barry

v. Barchi, 443 U.S. 55, 66 (1979) (“[I]t was necessary that

Barchi be assured a prompt post-suspension hearing, one that

would proceed and be concluded without appreciable delay.

Because the statute as applied in this case was deficient in this

respect, Barchi’s suspension was constitutionally infirm under

the Due Process Clause of the Fourteenth Amendment.”).

Indeed, “at some point delay must ripen into deprivation,

because otherwise a suit alleging deprivation would forever

be premature.” Schroeder v. City of Chicago, 927 F.2d 957,

960 (7th Cir. 1991) (Posner, J.).

[8] We understand these cases to support the common-

sense proposition that an unreasonable delay in the delivery

of an entitlement can amount to a deprivation of that entitle-

VETERANS FOR COMMON SENSE v. SHINSEKI 6343

ment.28 Veterans who are deprived of timely mental health

care are denied the opportunity to rehabilitate in a more

timely manner and to avoid sinking deeper into depression

and disability. And, of course, for those veterans whose ill-

ness causes them to take their own lives in the interim, the

deprivation is final.

c

Finally, we must decide whether the process designed to

protect veterans against the deprivation of their property inter-

est is sufficient, or whether additional process is due. We

apply the traditional balancing test Mathews v. Eldridge in the

context of veterans’ entitlements. See, e.g., National Ass’n of

Radiation Survivors v. Derwinski, 994 F.2d 583, 588 (9th Cir.

2002).29 The Mathews Court explained that “procedural due

28

Whether that deprivation is actually unconstitutional, because inflicted

without due process, is a distinct question to which we turn next.

29

Contrary to the dissent’s suggestion, Walters v. National Association

of Radiation Survivors, 473 U.S. 305 (1985), did not create a new, special

“high hurdle” for all due process challenges involving veterans. See Dis-

senting op. at 6390, 6396. Walters applied the Mathews formulation and

determined that, in light of the government’s strong, centuries-old interest

in maintaining a veterans’ claims system that is “as informal and nonad-

versarial as possible,” “[i]t would take an extraordinarily strong showing

of probability of error under the present system — and the probability that

the presence of attorneys would sharply diminish that possibility — to

warrant a holding that the fee limitation denies claimants due process of

law.” Id. at 323, 326.

Moreover, Walters was clear that government’s interest in an “informal

and nonadversarial” system, as defined by that case, was limited to “the

system for administering benefits” within the VA. Id. at 321. The dissent

cannot be serious when it suggests that the government has an interest in

an “informal and nonadversarial” resolution to the years of federal-court

litigation in this case. Dissenting op. at 6373, 6390. Although our decision

today is the product of adversarial litigation and results in an injunction

being entered against the VA, it does nothing to compromise the “informal

and nonadversarial” procedures within the VA during the initial adjudica-

tion of claims for veterans benefits. Indeed, in part IV of this opinion we

reaffirm Walters’s holding that the limitation on payments to attorneys

during regional-level agency adjudications does not violate due process.

6344 VETERANS FOR COMMON SENSE v. SHINSEKI

process imposes constraints on governmental decisions which

deprive individuals of ‘liberty’ or ‘property’ interests within

the meaning of the Fifth . . . Amendment,” Mathews, 424 U.S.

at 332. According to Mathews, the “identification of the spe-

cific dictates of due process” with regard to a deprivation of

a protected interest “generally requires consideration of three

distinct factors: First, the private interest that will be affected

by the official action; second, the risk of an erroneous depri-

vation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest, including

the function involved and the fiscal and administrative bur-

dens that the additional or substitute procedural requirement

would entail.” Id. at 335.

(1) The district court correctly concluded that, with respect

to the first Mathews factor, “the private interest of veterans in

receiving health care is high.” Proper care can alleviate the

severe toll that PTSD takes on veterans and their families, and

it reduces the incidence of suicide. The district court erred,

however, in its conclusion that the risk of erroneous depriva-

tion was low, and in its determination that Veterans had failed

to prove a systemic denial or unreasonable delay in mental

health care provision that would create a high risk of errone-

ous deprivation. It similarly erred in its conclusion that the

third Mathews factor weighs against imposing additional pro-

cedural safeguards, based upon its erroneous assumption that

such safeguards would impose undue administrative burdens

on the VA. We examine each of the latter two factors in turn.

(2) In weighing the second Mathews factor, the district

court substantially underestimated the risk of erroneous depri-

vation faced by veterans with serious mental illnesses and dis-

orders. Veterans did not prove conclusively at trial that

veterans seeking mental health care face a high risk of detri-

mental delays in the provision of care, but the district court’s

factual findings support the conclusion that there is a signifi-

cant risk that delays in treatment will harm veterans. Mathews

VETERANS FOR COMMON SENSE v. SHINSEKI 6345

requires us to balance that risk of erroneous deprivation

against the “probable value, if any, of additional . . . proce-

dural safeguards.” Mathews, 424 U.S. at 335. In the area of

scheduling veterans for mental health care appointments, the

marginal value of “additional” procedural safeguards is

extraordinarily high, because at present no procedure is in

place to ensure that mental health appointments are provided

soon enough to be effective.

Although a “clinical” decision made by a mental health

care professional — such as a nurse, doctor, or psychologist

— to place a veteran on a waiting list for care may be

appealed, a veteran has no opportunity at all to appeal a recep-

tionist or call center’s “administrative” decision that he must

wait to receive mental health care.30 In the district court, Dr.

Murawsky, the chief medical officer of one of the VA’s 21

national regions, was asked what would happen “if the vet-

eran is told that ‘You get an appointment in 60 days,’ and the

veteran wants an earlier appointment.” He responded that the

VA’s “policy doesn’t cover appointment time.” (Emphasis

added.) Indeed, veterans whose delayed care stems from

administrative decisions have no right to speak with a super-

vising administrator about their need for more immediate

care, nor to insist that they be evaluated by a medical profes-

sional, nor to secure any other review that would lessen the

likelihood that diagnosis and treatment are delayed too long

for their cases.

Only if a scheduling decision were made by a medical pro-

fessional — for example if a “nurse or physician sa[id]

‘You’re medically stable . . . — an appointment in six weeks

is appropriate’ ” — would a veteran have any opportunity to

request a review, through the clinical appeals process. Of

course, at that point the veteran would at least have been eval-

uated by a medical professional — something that a veteran

30

Veterans do not challenge the clinical appeals process, described

supra at 6308-09, here, and so we do not address its adequacy.

6346 VETERANS FOR COMMON SENSE v. SHINSEKI

calling by phone or speaking to a receptionist would not auto-

matically get, unless he walked into a VA emergency room or

clinic and actually “expressed suicidal intentions.” Like most

medical patients, veterans are generally scheduled first by

administrative staff, and then seen second by medical person-

nel (at their scheduled appointments) — not the other way

around, as the dissent suggests.

There is, quite simply, no process for review of a

scheduler’s assignment of a mental health care appointment

weeks in the future. The district court’s suggestion that the

clinical appeals process offers a sufficient procedural safe-

guard for all veterans on VHA waiting lists, including those

placed on such lists by administrators, is clearly contrary to

the record. So too does the dissent improperly confuse the dis-

tinction between clinical delays, for which some process is

provided, and administrative ones, for which there is none.31

[9] The record before us is replete with examples of delete-

rious delay in the VHA’s provision of mental health care, and

shows that many veterans throughout the country have no

means available to appeal the delays to which they are sub-

jected. The record contains one story, for example, of a vet-

eran who committed suicide after calling the VA to report his

suicidal thoughts but was told he would be over 25 places

down on a waiting list for treatment. In another case, a former

U.S. Marine who was at the Pentagon on September 11, 2001,

and later served in Iraq, reported a delay of almost eight

weeks before the VA would see him after “telling the VA

repeatedly that I was suicidal” and having already been diag-

nosed with PTSD. All told, over 84,000 veterans are on wait-

31

We have not “misunderst[ood] [the] evidence” of the existing proce-

dural safeguards, as the dissent suggests, dissenting op. at 6390; we have

simply avoided the error made by the district court and the dissent of

improperly confusing the distinction between clinical delays and adminis-

trative ones and conflating the issues unique to each. See Dissenting op.

at 6390-95.

VETERANS FOR COMMON SENSE v. SHINSEKI 6347

ing lists for mental health care. The district court made no

finding as to the number of veterans who were placed on

waiting lists by administrators, as opposed to clinicians. Vet-

erans argue that vast numbers of veterans are denied access to

mental health care by administrators, and the VA offers no

evidence to rebut this claim. What is clear is that veterans

have no recourse when they are told that they cannot be

scheduled sooner for a mental health appointment.

This absence of procedural safeguards is particularly alarm-

ing in view of the apparent ineffectiveness in the scheduling

system. In July 2005, an “Audit of the Veterans Health

Administration’s Outpatient Scheduling Procedures” con-

ducted by the VA’s Office of Inspector General found that the

“VHA did not follow established procedures when scheduling

medical appointments for veterans seeking outpatient care,”

including mental health care. Two years later, a follow-up

audit revealed that five of the eight recommendations for

improvement made in 2005 had not been implemented. Spe-

cifically, the 2007 report found: 72 percent of patient appoint-

ments had “unexplained” delays between dates care was

requested by veterans and their clinicians and the dates

appointments were scheduled; schedulers were not adequately

trained, particularly on scheduling consult appointments with

specialists; and that pressure to reduce the length of patient

waiting lists had caused schedulers to avoid placing patients

on lists for appointments at all.

Similarly, a 2005 U.S. Government Accountability Office

report on VA services for PTSD found that the VA had not

developed referral mechanisms to provide PTSD services

when those services were not available at community-based

clinics, and challenged the “VA’s capacity to identify and

treat veterans returning from military combat who may be at

risk for developing PTSD, while maintaining PTSD services

for veterans currently receiving them.” And the district court

found that, while the Feeley Memorandum states that veterans

who present to a Medical Center or Community Based Out-

6348 VETERANS FOR COMMON SENSE v. SHINSEKI

reach Center for the first time with mental health issues

should be evaluated within 24 hours, the VA lacks any

method to ensure compliance with this 24-hour evaluation

policy and does not know whether the policy has been imple-

mented.

[10] This is therefore not a case in which existing proce-

dures are sufficient, such that additional process is unlikely to

produce significant marginal reductions in the risk of errone-

ous deprivation. See, e.g., Mathews, 424 U.S. at 343-46.

Instead, the underlying scheduling system is flawed, and there

is no procedure whatsoever for veterans to challenge their

delays. Consequently, any additional procedure would pro-

duce a meaningful improvement in ensuring that veterans are

not left to wait too long to get the care they need.

(3) The district court’s weighing of the third Mathews fac-

tor was similarly erroneous. It concluded that “additional

safeguards” in the VHA’s system for treating veterans with

mental health issues would impose unwarranted “burdens on

the VA.” The district court did not make any specific factual

findings based on the record in the case before us as to the

nature and extent of additional administrative burdens that

would be imposed upon the VA, if additional procedural safe-

guards were introduced to facilitate veterans’ ability to secure

their entitlement to mental health care in a timely and effec-

tive manner. Instead, it appears to have based this conclusion

solely on a quotation plucked from a Supreme Court case

regarding the government’s “ ‘genuine interest in allocating

priority to the diagnosis and treatment of patients . . . rather

than to time-consuming procedural minuets.’ ” (Quoting

Parham v. J.R., 442 U.S. 584, 605 (1979)). The VA now cites

this same language.

Cases are not quotations, however, to be relied upon like

entries in Bartlett’s purely for their convenient turns of phrase.32

32

See BARTLETT’S FAMILIAR QUOTATIONS: A COLLECTION OF PASSAGES,

PHRASES, AND PROVERBS TRACED TO THEIR SOURCES IN ANCIENT AND MODERN

LITERATURE (17th ed. 2002).

VETERANS FOR COMMON SENSE v. SHINSEKI 6349

Rather, cases are clusters of facts and applications of legal

principles to those facts that must be read in whole. Parham,

which examined the due process rights of minors committed

to state psychiatric facilities by their parents, emphasized

Georgia’s “significant interest in not imposing unnecessary

procedural obstacles that may discourage the mentally ill or

their families from seeking needed psychiatric assistance.”

442 U.S. at 605. That is, the Court was concerned that addi-

tional procedure would create delay, which would harm the

state’s interest in making hassle-free treatment available to

families that need it. Indeed, the unabridged sentence from

Parham is: “The State also has a genuine interest in allocating

priority to the diagnosis and treatment of patients as soon as

they are admitted to a hospital rather than to time-consuming

procedural minuets before the admission.” Id. (emphasis

added). Here, the government is not prioritizing the diagnosis

and treatment of patients over unnecessary delay. To the con-

trary, it is embracing delay over effective treatment.

If there is any justification for the VA’s interest in main-

taining the status quo, it has not told us, and we cannot imag-

ine one. Cost — often claimed by the government as an

interest in less robust process — does not seem to be at issue

here. The VA does not mention expense, and as the district

court found, “the VHA’s Chief Financial Officer testified that

the VHA is not currently facing a budget crisis and has ade-

quate money to ‘meet the mission requirements.’ ” Moreover,

the VA has hired more than 3,800 new mental health staff

over the past few years, and 500-600 positions still remain

unfilled. In fact, the only governmental interest we can con-

ceive of is the same as Veterans’s: expediting the provision of

mental health care to save the lives of men and women who

have fought for our country. As the government represented

at oral argument, “The VA is firmly committed to ensuring

that our nation’s veterans receive top-quality health care.”

Oral Arg. Audio at 25:12.

***

6350 VETERANS FOR COMMON SENSE v. SHINSEKI

[11] We have determined that veterans have a towering

interest in avoiding delays in their mental health care, the risk

of erroneous deprivation is high given the absence of review

procedures, the value of additional procedural safeguards

would be great, and the government’s interest does not weigh

against additional protections. The current delays therefore

constitute a deprivation of Veterans’s mental health care with-

out due process, in violation of the Fifth Amendment.

[12] We reverse the district court’s judgment to the con-

trary, and remand for further proceedings. On remand, the dis-

trict court shall conduct hearings in order to determine what

additional procedures or other actions would remedy the

existing due process violations in three core areas. The district

court shall consider what procedural protections are necessary

to ensure that:

(1) individuals placed on VHA waiting lists for

mental health care have the opportunity to

appeal the decision in a timely manner and to

explain their need for earlier treatment to a

qualified individual;

(2) individuals determined to be in need of mental

health care receive that treatment in a timely

manner; and

(3) individuals with urgent mental health problems,

particularly those at imminent risk of suicide,

receive immediate mental health care.

Although, as we have noted earlier, the district court may not

order the VHA to implement the Mental Health Strategic Plan

or institute the recommendations of the Feeley Memorandum,

it may consider specific procedures or measures mentioned in

both to aid in its determination as to what procedures are nec-

essary. The district court’s determination may also draw upon

the findings of the 2007 VA Office of Inspector General

VETERANS FOR COMMON SENSE v. SHINSEKI 6351

Report, and other evidence already in the record or adduced

at a hearing following remand; we recognize that circum-

stances may have evolved since the district court last took evi-

dence three years ago.

We still remain hopeful that at least some of the problems

in this case can be resolved by the parties working together.

The district court should encourage them to meet and confer

to propose a remedial plan that addresses the mental health

care delivery problems described above, to be presented to the

court for approval. It is within the discretion of the district

court to consider obtaining the assistance of a Magistrate

Judge or appointing a Special Master to aid the court in any

way deemed necessary. In the end, the district court shall

either approve a plan agreed upon by the parties or enter an

appropriate order instructing the VHA to provide Veterans

with the procedural safeguards to which they are entitled.

III

We next address Veterans’s statutory and constitutional

claims concerning the delays in the VBA’s claims adjudica-

tion system, particularly in the claims appeals process.

On appeal, Veterans challenge the district court’s denial of

relief for these claims and contend that relief is warranted

under both the APA and the Due Process Clause. Once again,

we affirm the district court’s denial of Veterans’s statutory

claim, but reverse the district court’s ruling on their constitu-

tional claim. We hold that Veterans’s entitlement to service-

connected death and disability compensation is a property

interest protected by the Due Process Clause, and that the lack

of adequate procedures to prevent undue delay in the provi-

sion of that property constitutes a deprivation that violates

Veterans’s constitutional rights.

6352 VETERANS FOR COMMON SENSE v. SHINSEKI

A. APA Challenge to Delays in Compensation Claim

Appeals

In considering Veterans’s APA claim with respect to bene-

fits adjudication, we are, once again, bound by the Supreme

Court’s instruction in Norton that: “General deficiencies in

compliance, unlike the failure to issue a ruling . . . lack the

specificity requisite for agency action.” Norton, 542 U.S. at

66. Veterans’s APA claim concerning timely and acceptable

adjudication of veterans’ service-connected death and disabil-

ity claims cannot proceed because Veterans do not assert that

the VA “failed to take a discrete agency action that it is

required to take.” Id. at 64.

The district court erred in stating: “It is uncontested the

adjudication of benefits claims is a discrete agency action that

the VA is required to take.” That analysis failed to consider

the cornerstone of Veterans’s APA claim. Veterans are chal-

lenging pervasive deficiencies in the adjudication process that

harm their members, not delays in discrete benefits adjudica-

tions that the VA is required to make. As discussed above,

agency action to remedy widespread delays is not a discrete,

“required” action under § 706(1). On this basis alone, Veter-

ans are barred from seeking statutory relief that is dependent

upon the VA’s waiver of sovereign immunity under the APA.

See Norton, 542 U.S. at 63-65. We therefore affirm the dis-

trict court’s dismissal of Veterans’s APA claim, on the basis

that it does not meet the APA requirement for reviewability.33

33

Because Veterans are barred from seeking statutory relief under the

APA, we need not consider the VA’s alternative arguments that 38 U.S.C.

§ 502 or § 511 also bar consideration of Veterans’s statutory claims.

VETERANS FOR COMMON SENSE v. SHINSEKI 6353

B. Due Process Clause Challenge to Delays in Compen-

sation Claim Appeals

1

First we must consider whether we may hear Veterans’s

constitutional claim. The VA argues that we lack jurisdiction

to do so, because the VJRA divests all federal courts but the

Veterans Court and the United States Court of Appeals for the

Federal Circuit of jurisdiction to review any question concern-

ing veterans benefits. We reject that contention. In our view,

the VJRA does not strip district courts of jurisdiction to hear

constitutional challenges to the VA’s system-wide conduct,

divorced from challenges to individual benefits determina-

tions.

The VA points to two sections of the VJRA, sections 502

and 511. Neither applies here.

a. Section 502. 38 U.S.C. § 502 states, “An action of the

Secretary to which [5 U.S.C. §§ 552(a)(1), 553 (the APA pro-

vision concerning rulemaking)] refers is subject to judicial

review. Such review . . . may be sought only in the United

States Court of Appeals for the Federal Circuit.” The district

court determined that, given § 502’s grant of exclusive juris-

diction to the Federal Circuit, “any challenge by [Veterans] to

VA regulations is not reviewable in this Court.” It found that

provision relevant because, in its view, granting Veterans the

relief they seek “would invariably implicate VA regulations.”

Consequently, it held that “any such challenge is reviewable

only in the Federal Circuit” under § 502.

By its plain text, however, § 502 concerns only “judicial

review” of “action[s] of the Secretary” as defined by the

APA. We are thus presented with Norton’s complement: for

the same reason that the delays Veterans challenge are not

“action[s] of the Secretary” that are reviewable under the

APA, see supra at 6333-37, they are not actions that may be

6354 VETERANS FOR COMMON SENSE v. SHINSEKI

challenged in the Federal Circuit only. Section 502 is clear in

its purpose of directing APA-based challenges to the VA’s

rules and regulations to a single federal court, in derogation

of the APA’s general grant of judicial review in all courts. So

we cannot read its jurisdiction-stripping provision any more

broadly than the narrow class of actions that may actually be

challenged under the APA after Norton.

In addition to § 502’s plain text, our precedent dictates this

result. In Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005),

we held that § 502 bars review outside the Federal Circuit of

“direct challenges to VA rules and regulations” only. Id. at

821 (emphasis added). And in Nehmer v. Department of Vet-

erans Affairs, 494 F.3d 846 (9th Cir. 2007), we determined

that § 502 concerns only suits that “directly challenge either

the merits of the VA’s regulation or the VA’s rulemaking

authority.” Id. at 857-858 (emphasis added). Veterans chal-

lenge neither, but only the VA’s failure to discharge its duty

to veterans in a short enough time to avoid depriving them of

their property interest without due process.

Finally, we find that the district court’s concern that “an

order expediting claims adjudications . . . would force the VA

to alter or repeal some of [its] regulations,” and thus would

violate § 502, was entirely misplaced. As just explained,

§ 502 limits judicial review of discrete agency actions, not

claims of the type asserted here. Veterans’s only surviving

claim with regard to benefits is a facial constitutional chal-

lenge to the VA’s actual conduct, not its codified rules, so

§ 502 is not implicated at all. See Nehmer, 494 F.3d at

858-859 (where plaintiffs “challenge[d] the actions of the VA

in failing to comply with the terms of” a court order, § 502

did not bar review “irrespective of the existence of the VA

regulations” that were adopted in response to the order,

because the claim was not a “facial challenge to VA regula-

tions”). While the VA may choose to modify its regulations

to comply with a remedial order, that future remedy would

not convert Veterans’s suit into an action for judicial review

VETERANS FOR COMMON SENSE v. SHINSEKI 6355

of an agency action subject to § 502. Thus, § 502 does not

affect our ability to review Veterans’s constitutional claims.

b. Section 511. The district court understood § 511 to pre-

clude “review of individual benefits decisions,” but not “fa-

cial constitutional challenges to the VA benefits system.”

Nonetheless, the court determined that § 511 barred review,

because “the determination of whether the delay is unreason-

able may depend on the facts of each particular claim,” which

individually may not be reviewed in district court.

Section 511 blocks review of “decision[s] of the Secretary”

as to any “questions of law and fact necessary to a decision

by the Secretary under a law that affects the provision of ben-

efits.” 38 U.S.C. § 511(a) (emphasis added). Under the stat-

ute’s plain text, there are three problems with the district

court’s analysis.

First, the conduct Veterans challenge is not a “decision”

within the meaning of § 511. While the term “decision” is not

expressly defined in the statute, we understand it in the con-

text of the statute to mean individual benefits adjudications —

the type of individualized decisions Congress sought to keep

out of the district courts. See H.R. Rep. No. 100-963, 1988

U.S.C.C.A.N. 5782, 5803-5804. Section 1156, for example,

discusses “ratings decision[s]” by the Secretary that determine

the degree of disability of a temporarily disabled veteran. 38

U.S.C. § 1156(b)(1)(B). Section 3107 concerns vocational

rehabilitation benefits for veterans, and provides that “[t]he

Secretary shall review [a veteran’s] statement [of disagree-

ment with his rehabilitation plan] and render a decision on

such review . . . .” 38 U.S.C. § 3107(c)(3). Later sections that

refer to § 511 shed further light on the meaning of “decisions”

as “individual determinations.” Section 5104, for example, is

titled “Decisions and notices of decisions,” and explains that

the Secretary must give a claimant notice “of a decision by

the Secretary under § 511 of this title affecting the provision

of benefits to a claimant.” 38 U.S.C. § 5104(a) (emphasis

6356 VETERANS FOR COMMON SENSE v. SHINSEKI

added). And § 7104, which outlines the jurisdiction of the

Board of Veterans’ Appeals, provides, “All questions in a

matter which under section 511(a) of this title is subject to

decision by the Secretary shall be subject to one review on

appeal to the Secretary. Final decisions on such appeals shall

be made by the Board [of Veterans’ Appeals].” 38 U.S.C.

§ 7104. Veterans do not challenge a “decision by the Secre-

tary” here. Instead, they challenge systemic delays in the ben-

efits adjudication process that deprive them of the aid to

which they are entitled.

Second, even if the term “decision” did apply, § 511 pre-

cludes judicial review only of “decision[s]” actually made by

the Secretary. As with Veterans’s constitutional challenge to

the delays in the delivery of mental health care, whatever

“questions of law” the challenge may require us to answer are

not questions the VA has already answered. Nor has the VA

made a final decision in Veterans’s members’ appeals; that

their appeals languish undecided is the very basis for their

claim.34 We thus agree with the Federal Circuit’s interpreta-

tion of this provision: “Section 511(a) does not apply to every

challenge to an action by the VA. As we have held, it only

applies where there has been a ‘decision by the Secretary.’ In

the context of the history of this provision, the statute plainly

contemplates a formal ‘decision’ by the Secretary or his dele-

gate.” Bates v. Nicholson, 398 F.3d 1355, 1365 (Fed. Cir.

2005) (citation omitted). Veterans do not challenge the VA’s

initial ratings decision in their members’ cases here, just the

VA’s systematic failure to timely render decisions on appeal.

Finally, unlike § 502, § 511 does not grant exclusive juris-

diction to any agency or court over a class of legal claims,

except challenges to “decision[s]” within the meaning of

§ 511 that have actually been made by the Secretary. Nothing

34

The VA’s argument (Gov’t Br. 41 n.10) that “there is no question that

the VA is actually deciding benefits claims” is thus misplaced; § 511 is

concerned only with extant, not potential, decisions.

VETERANS FOR COMMON SENSE v. SHINSEKI 6357

in § 511 prevents claims that could be (but have not yet been)

adjudicated by the Secretary, and then reviewed by the Court

of Veterans Claims and the Federal Circuit, from being raised

in another court of competent jurisdiction instead. Our view

in this regard accords with that of the D.C. Circuit:

Section 511(a) does not give the VA exclusive juris-

diction to construe laws affecting the provision of

veterans benefits or to consider all issues that might

somehow touch upon whether someone receives vet-

erans benefits. Rather, it simply gives the VA

authority to consider such questions when making a

decision about benefits, and . . . prevents district

courts from “review[ing]” the Secretary’s decision

once made.

Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006)

(emphasis added). Thus in Broudy, the plaintiffs’ claim that

VA officials had obstructed their access to benefits proceed-

ings by withholding or covering up relevant information was

not barred by § 511 because “the Secretary ha[d] never

decided th[o]se questions.” Id. at 114.

The Federal Circuit agrees as well. In Hanlin v. United

States, 214 F.3d 1319 (Fed. Cir. 2000), that court explained:

We do not read [§ 511] to require the Secretary, and

only the Secretary, to make all decisions related to

laws affecting the provision of benefits. Rather, once

the Secretary has been asked to make a decision in

a particular case (e.g., through the filing of a claim

with the VA), 38 U.S.C. § 511(a) imposes a duty on

the Secretary to decide all questions of fact and law

necessary to a decision in that case.”

Id. at 1321. Consequently, the plaintiff in that case, an attor-

ney for a veteran to whom the VA was supposed to send a

portion of his client’s benefit award as a fee, was permitted

6358 VETERANS FOR COMMON SENSE v. SHINSEKI

to sue the VA in the Court of Federal Claims, notwithstanding

the fact that his “claim arises under [the attorney’s fees provi-

sion of title 38], which is ‘a law that affects the provision of

benefits’ within the meaning of” § 511. Id. at 1321.

We recognize, however, that the Sixth Circuit has con-

strued § 511 more broadly than have the D.C. Circuit and

Federal Circuit. In Beamon v. Brown, 125 F.3d 965 (6th Cir.

1997), the court considered a putative class action brought by

veterans to challenge delays in the processing of veterans’

benefits. The court found these claims barred by § 511, rea-

soning:

Such a challenge raises questions of law and fact

regarding the appropriate methods for the adjudica-

tion of veterans’ claims for benefits. Determining the

proper procedures for claim adjudication is a neces-

sary precursor to deciding veterans benefits claims.

Under § 511(a), the VA Secretary shall decide this

type of question.

Id. at 970. We fail to understand how the Sixth Circuit

squared its reasoning with the plain text of the statute, which

makes no mention of “precursors” or “procedures,” but only

decisions. Its conclusion is all the more odd in light of

§ 511(b), which excepts from § 511(a) challenges to the VA’s

rules and regulations. Even if the term “decision” did encom-

pass the Secretary’s “[d]etermin[ation] [of] the proper proce-

dures for claim adjudication,” that determination would

typically be made by rule and thus exempt from § 511(a)’s

bar to review.

Not only do we find more persuasive the positions of the

D.C. Circuit and Federal Circuits, but we would be prohibited

from adopting the Sixth Circuit’s view even if we were

inclined to do so because of the particular nature of this case.

The Sixth Circuit relied heavily in its analysis on the avail-

ability to the plaintiffs of an alternate forum for their constitu-

VETERANS FOR COMMON SENSE v. SHINSEKI 6359

tional claims in the Veterans Court. Beamon, 125 F.3d at

971-974. But, as the district court recognized, the Veterans

Court would lack jurisdiction over the type of claims raised

by the plaintiffs here, even if they were raised by Veterans’

members individually. The Veterans Court has acknowledged

that “[n]owhere has Congress given this Court either the

authority or the responsibility to supervise or oversee the

ongoing adjudication process which results in a BVA deci-

sion.” Clearly v. Brown, 8 Vet. App. 305, 308 (1995) (empha-

sis added); see also Dacoran v. Brown, 4 Vet. App. 115

(1993) (noting that constitutional challenges could be “pre-

sented to this Court only in the context of a proper and timely

appeal taken from such decision made by the VA Secretary

through the BVA”) (emphasis added).

Moreover, organizations such as Veterans could not pre-

sent claims to the Veterans Court, whose jurisdiction is lim-

ited to appeals from the BVA. If we were to adopt the Sixth

Circuit’s broad reading of § 511, then the plaintiff organiza-

tions would be deprived of any forum in which to raise their

claims.35 As the Beamon court itself noted, the possibility of

35

The plaintiff organizations are, of course, separate entities from their

members. We fail to understand how the dissent can suggest that these

independent corporate persons litigating in their own names, although bor-

rowing their members’ standing, are no different from a group of individ-

ual veterans litigating as a plaintiff class. See Dissenting op. at 6381-82.

Indeed, the Supreme Court years ago rejected the argument that “[b]oth

associational standing and [class actions] are ‘designed to serve precisely

the same purpose.’ ” United Auto. Workers v. Brock, 477 U.S. 274, 288

(1986). The Court explained,

While a class action creates an ad hoc union of injured plaintiffs

who may be linked only by their common claims, an association

suing to vindicate the interests of its members can draw upon a

pre-existing reservoir of expertise and capital. Besides financial

resources, organizations often have specialized expertise and

research resources relating to the subject matter of the lawsuit

that individual plaintiffs lack. These resources can assist both

courts and plaintiffs. As one court observed of an association’s

6360 VETERANS FOR COMMON SENSE v. SHINSEKI

interpreting the predecessor to § 511 “as a complete bar to the

judicial review of all challenges to such decisions” has led the

Supreme Court to decide that the provision did not preclude

district courts from hearing constitutional challenges relating

to veterans benefits, for fear “of the constitutional danger of

precluding judicial review of constitutional claims.” Id. at

971-972 (citing Johnson v. Robison, 415 U.S. 361 (1974)).

For that same reason, we could not construe § 511 so broadly

here given the specific nature of this case.36

The purpose of the VJRA was to keep thousands of suits

role in pending litigation: “[T]he interest and expertise of this

plaintiff, when exerted on behalf of its directly affected members,

assure ‘that concrete adverseness which sharpens the presentation

of issues upon which the court so largely depends for illumina-

tion of difficult . . . questions.’ ”

Id. at 289 (first internal quotation marks and citations omitted). That is, an

organization is much more than a mere “tool, like class actions, for vindi-

cating individual members’ interests.” Dissenting op. at 6382.

36

A recent case before the D.C. Circuit considered a challenge similar

to Veterans’s claim here as to the benefits adjudication system. See Viet-

nam Veterans of Am. v. Shinseki, 599 F.3d 654 (D.C. Cir. 2010). That case

was decided solely on standing grounds, as noted supra at 6321-22 n.16.

See Vietnam Veterans, 559 F.3d at 661-662. In the six pages of dicta that

preceded that holding, however, the court discussed Beamon favorably

before stating, “[o]ur discussion of this issue is tentative.” Id. at 659-661.

We give no weight to the tentative dictum of other courts. In any event,

Vietnam Veterans considered Beamon not for its holding as to § 511, but

rather for its finding that the adequate alternative remedy in the Veterans

Court barred review of the plaintiffs’ APA-based challenge, because APA

§ 704 precludes review if an alternate remedy exists elsewhere. Id. at 659

(citing Beamon, 125 F.3d at 967-970). Vietnam Veterans went on to muse,

“we think it virtually inevitable that it would be held that the [Veterans

Court] has exclusive jurisdiction to hear due process claims” too, because

those claims were “essentially identical” to the plaintiffs’ “unreasonable

delay claim” under the APA. Id. at 660 & n.7. We are aware of no princi-

ple that limitations on a statutory cause of action may be transferred

wholesale to a constitutional claim simply because it arises from the same

underlying events.

VETERANS FOR COMMON SENSE v. SHINSEKI 6361

concerning individual benefits determinations from crowding

the dockets of the federal courts, on top of the social security

cases and immigration petitions for review that already keep

them busy reviewing agency actions. Although the VA and

the dissent struggle mightily to ignore the nature of this suit,

it is plain that a structural constitutional challenge is beyond

the jurisdiction of the Veterans Court to hear and, due in part

to the Secretary’s prolonged indecision on appeals, outside

the preclusive sweep of § 511.

2

Turning, at last, to the merits of Veterans’s constitutional

claim, we hold that the district court rightly acknowledged

that “many veterans have a protected property interest [under

the Due Process Clause] as applicants for and recipients of

SCDDC benefits.” Accord Cushman v. Shinseki, 576 F.3d

1290, 1298 (Fed. Cir. 2009) (holding that veterans’ benefits

are a protected property interest under the Fifth Amendment,

because they are statutorily mandated and nondiscretionary in

nature).

Confronted with the stark and sobering evidence of inexpli-

cable delays in the benefits adjudication process, the district

court stated that it could not conclude that the due process

rights of veterans were violated by the absence of procedures

designed to reduce delays in claim appeals, “in light of many

of the factors creating these delays.” To reach this conclusion,

the district court relied primarily on the Seventh Circuit’s

decision in Wright v. Califano, 587 F.2d 345 (7th Cir. 1978),

which found that 180-day delays in the adjudication of social

security benefits did not constitute a due process violation

under Mathews v. Eldridge, given the Social Security Admin-

istration’s “severe resource constraints.” Id. at 354-356. The

court found Wright’s “reasoning applicable to the present

case.”

In so ruling, however, the district court failed to properly

analyze Veterans’s due process claim by conducting a

6362 VETERANS FOR COMMON SENSE v. SHINSEKI

Mathews analysis of its own based on the facts of this case.

“ ‘[D]ue process,’ unlike some legal rules, is not a technical

conception with a fixed content unrelated to time, place and

circumstances.” Cafeteria & Restaurant Workers v. McElroy,

367 U.S. 886, 895 (1961). Instead, “due process is flexible

and calls for such procedural protections as the particular situ-

ation demands.” Morrissey v. Brewer, 408 U.S. 471, 481

(1972). Wright itself acknowledged that there could come a

time “when due process is no longer due process because past

due”; it just found that, on the facts of that case, that time had

not yet been reached. Wright, 587 F.2d at 354. So we must

undertake that analysis to see if process is “past due” here by

“examin[ing] the importance of the private interest and the

harm to this interest occasioned by delay; the justification

offered by the Government for delay and its relation to the

underlying governmental interest; and the likelihood that the

interim decision may have been mistaken.” FDIC v. Mallen,

486 U.S. 230, 242 (1988).

[13] First, we find that veterans’ property interest in their

service-connected death and disability compensation could

not be more vital — many recipients of such benefits are

totally or primarily dependent upon that compensation for

their financial support and the support of their families. A vet-

eran receives no monies from the VA until his claim has been

approved, which means that during the initial period of claim

assessment and during the pendency of any appeal he and his

family suffer tremendous privation. To pursue a claim to com-

pletion, for example, may take in excess of 4.4 years, even

excluding “the time between an . . . initial decision [at the

Regional Office level] and a veteran’s NOD filing, which may

be as long as one year”). During the pendency of such

appeals, the record before us shows that many veterans perish,

after living in want. The district court’s memorandum of deci-

sion states, for example, that “[b]etween October 1, 2007, and

March 31, 2008, alone, at least 1,467 veterans died during the

pendency of their appeals,” thus extinguishing their appeals.

VETERANS FOR COMMON SENSE v. SHINSEKI 6363

The private interest is thus strong — as is, indeed, the public

interest, given the nature of the claimants.

Second, the VA attributes the delays in claims appeals, in

part, to its placing a priority on adjudicating initial claims. We

fail to understand, however, why prioritizing initial claim

adjudications must come at the expense of timely appeals pro-

cessing. Much of the delay appears to arise from gross ineffi-

ciency, not resource constraints. We are particularly doubtful,

for example, that any government interest could justify the

573-day average delay for a Regional Officer to certify an

appeal to the BVA after receiving a veteran’s form requesting

an appeal — a step that we understand to be a ministerial task.

We are as confounded as the Chairman of the BVA, who at

trial “was unable to explain” the overall “lengthy delay in the

resolution of appeals.” If resource constraints are an issue, the

VA has not asserted as much, and the record does not suggest

that staffing or funding shortages are responsible for the

delays in the adjudication process. To the contrary, the district

court found that the VBA is rapidly increasing its staff.

[14] Finally, we might find the VA’s argument more com-

pelling if it were not clear that prioritizing initial determina-

tions over appeals has not worked, given the high reversal rate

of those determinations. Only forty percent of initial decisions

appealed are affirmed.37 Between 19 and 44 percent of

37

See also Transcript of Oral Arg., Astrue v. Ratliff, No. 08-1322 (U.S.

Feb. 22, 2010):

[Assistant to the Solicitor General Anthony] YANG: [The

reversal rate in the VA context is] in the order of either 50 or

maybe slightly more than 50 percent. It might be 60. But the

number is substantial that you get a reversal . . . .

CHIEF JUSTICE ROBERTS: Well, that’s really startling, isn’t

it? In litigating with veterans, the government more often than

not takes a position that is substantially unjustified?

MR. YANG: It is an unfortunate number, Your Honor. And it

is — it’s accurate.

6364 VETERANS FOR COMMON SENSE v. SHINSEKI

remands by the BVA, when appellate decisions are eventually

reached, are “avoidable,” meaning “an error [was] made by

the R[egional] O[ffice] before it certifie[d] the appeal to the

B[oard].” It is unlikely that initial adjudications can approach

perfect accuracy even if priority is given to them. Under those

circumstances, we do not find that the VA’s interest out-

weighs veterans’ in ensuring that those initial determinations

that are incorrect get corrected quickly, even if the VA did

actually have to make such a trade-off. Given that 60 percent

of all appeals result in grants or remands, the risk of pro-

longed erroneous deprivation during these delays is high. We

therefore find that the delays in the VA’s claims appeals pro-

cess amount to deprivation of property without due process.

We find support for our conclusion in the reasoning of

other courts facing similar balancing determinations. Some

courts, like the Seventh Circuit in Wright, have found no due

process violation when faced with relatively short delays in

the provision of benefits and substantial government interests.

In Barrett v. Roberts, 551 F.2d 662 (5th Cir. 1977), for exam-

ple, the Fifth Circuit found that 8- to 20-day delays in the

receipt of a single month’s welfare check did not deny due

process, because those delays occurred during a semi-annual

review for program eligibility, which was necessary to the

government’s interest in preventing undeserving recipients

from claiming entitlements. In Littlefield v. Heckler, 824 F.2d

242 (3d Cir. 1987), the Third Circuit determined that a nine-

month delay between the issuance of an ALJ’s “recommended

decision” in a social security benefits case and a final decision

by the Social Security Administration’s Appeals Council was

constitutional, given the volume of cases before the Appeals

Council. Id. at 246-247. And the Second Circuit found that a

19-month delay in Medicare reimbursements of claims of

under $500, caused by the government’s requirement that

claim disputes be heard by a private hearing officer prior to

being adjudicated by an ALJ, was justified because (1) the

private interest was low where the amount of benefits was

small and not related to financial need, (2) the lack of infor-

VETERANS FOR COMMON SENSE v. SHINSEKI 6365

mation about the risk of erroneous deprivation during the

delay, and (3) the government’s substantial interest in resolv-

ing more claims through the informal procedure. Isaacs v.

Bowen, 865 F.2d 468 (2d Cir. 1989).

By contrast, the Third Circuit determined that a three-year

and nine-month delay in evaluating an application for a dis-

abled child’s annuity under the Railroad Retirement Act vio-

lated due process. Kelly v. R.R. Retirement Bd., 625 F.2d 486

(3d Cir. 1980). The applicant sought disability benefits to sus-

tain her while she fought severe depression. The court found

it “wholly inexcusable” that “the administrative review pro-

cess of a single disability application extended to nearly four

years.” Id. at 490. It reasoned, “Although there is no magic

length of time after which due process requirements are vio-

lated, we are certain that three years, nine months, is well past

any reasonable time limit, when no valid reason for the delay

is given.” Id. The court rejected the Board’s argument that the

delay was necessary to gather evidence, because it found that

no decision issued until more than one year after all evidence

was gathered. Moreover, it found “the backlog of cases and

limited resources of the Board” to be no excuse, because

“[w]hatever its internal problems, the Board has the power to

implement regulations that would accelerate the agency

review process. Four years is totally out of phase with the

requirements of fairness.” Id. at 491.

And in Kraebel v. New York City Department of Housing

Preservation & Development, 959 F.2d 395 (2d Cir. 1992),

the Second Circuit found a likely due process violation when

the city delayed granting property tax benefits to a landlord

who was entitled to the tax benefits after rehabilitating her

buildings as part of a city program. It took one and a half

years for the city to determine that the landlord was in fact

entitled to the benefit. But, the court reasoned, “even before

the state makes a definitive decision as to entitlement, the

road to that determination must be paved by due process.” Id.

at 405. The court remanded for the district court to consider

6366 VETERANS FOR COMMON SENSE v. SHINSEKI

in the first instance whether the delay was justified, weighing

the landlord’s interest in prompt payment for her voluntary

participation in a socially beneficial program against the diffi-

culty faced by the city in making eligibility determinations.

Id. at 406.

We are confident that the present case fits comfortably

within the latter category of cases rather than the former. This

is not a case involving short but justified delays of critical

benefits, cf. Barrett, moderate delays of important benefits

caused by a system overload, cf. Littlefield, or long delays of

minor benefits due to government interest in efficiency, cf.

Isaacs. Instead, like Kelly, this case involves critical benefits

to sustain those incapacitated by mental disability, delayed for

an excessive period of time without satisfactory explanation.

[15] Again, we remand to the district court with the

instruction that it conduct evidentiary hearings in order to

determine what procedures would remedy the existing due

process violations in the VBA claims adjudication process.

The hearings shall explore what procedural protections are

most appropriate to permit the appeals of veterans to be expe-

dited in the most efficient manner, with a particular emphasis

on the procedural protections necessary for veterans suffering

the most financial hardship during the adjudication of their

claims. The district court may consider the need for setting

maximum time periods for determinations at various stages of

the claims adjudication process and/or the need for a proce-

dure to expedite claims where emergency circumstances are

shown to exist. As stated above, the district court may seek

the assistance of a Magistrate Judge or Special Master in cre-

ating and implementing a remedial plan, and the court should

first encourage the parties to meet and confer to propose a

remedial plan. In the end, the district court shall either

approve an agreement reached by the parties or enter an

appropriate order instructing the VBA to provide Veterans

with the procedural safeguards to which they are entitled.

VETERANS FOR COMMON SENSE v. SHINSEKI 6367

IV

Veterans also assert that there is a lack of adequate proce-

dures when veterans initially file their claims for service-

connected death and disability benefits at their local VBA

Regional Office (“RO”).

[16] Veterans file an initial claim for service-connected

death and disability compensation with their RO. Veterans

claim that the VA violates veterans’ due process rights by

failing to afford adequate procedural protections to veterans

during the initial submission of their claims and the adjudica-

tion of those claims at the RO level, because there is no right

to a pre-decisional hearing and discovery and veterans are

prohibited from retaining paid counsel to assist them in the

submission of their initial claim.38 Veterans do not challenge

the time period required for the initial adjudication of claims

at the RO level, but rather they challenge solely the proce-

dures in place (or lack thereof) to facilitate veterans’ submis-

sion of their claims. We affirm the district court on this claim

because the non-adversarial procedures at the VA level are

sufficient to satisfy the dictates of due process.

In reaching its conclusion that the RO level procedures do

not violate veterans’ due process rights, the district court con-

ducted an analysis of the Mathews factors. While the first fac-

tor weighs in favor of relief (“veterans and their families have

a compelling interest in receiving disability benefits and . . .

the consequences of erroneous deprivation can be devastat-

ing”), the district court concluded that the second and third

factors do not support relief. In concluding that the risk of

erroneous deprivation at the RO level is relatively low, the

district court noted that a small percentage of cases are

affected, given the small percentage of RO determinations

38

After the veteran files a Notice of Disagreement, thereby appealing

from the RO level, the veteran is exempt from the prohibition on retaining

paid counsel. 38 U.S.C. § 3904(c)(1).

6368 VETERANS FOR COMMON SENSE v. SHINSEKI

that are appealed.39 In addition, the district court noted that the

third factor weighed against relief where the VA would face

“significant” fiscal and administrative burdens if required to

implement Veterans’s proposed additional procedural require-

ments at the RO level.

We note that the government also has an interest in main-

taining the non-adversarial nature of RO level proceedings.

With regard to the prohibition on retaining paid counsel, the

Supreme Court has said:

The Government interest, which has been articulated

in congressional debates since the fee limitation was

first enacted in 1862 during the Civil War, has been

this: that the system for administering benefits

should be managed in a sufficiently informal way

that there should be no need for the employment of

an attorney to obtain benefits to which a claimant

was entitled, so that the claimant would receive the

entirety of the award without having to divide it with

a lawyer.

Walters, 473 U.S. at 322. The Court noted that allowing the

payment of attorneys “would seriously frustrate the oft-

repeated congressional purpose for enacting [the fee limita-

tion].” Id. at 323. The Walters Court characterized the govern-

ment’s interest as warranting “great weight,” and concluded

that “[i]t would take an extraordinarily strong showing of

probability of error under the present system — and the prob-

ability that the presence of attorneys would sharply diminish

that possibility — to warrant a holding that the fee limitation

denies claimants due process of law.” Id. at 326. The plain-

tiffs in Walters failed to make this strong showing, and the

court therefore held that there was no due process violation.

Id. at 334. We are bound by that holding. If the Supreme

39

We accord little weight to this fact as a measure of actual accuracy,

in light of the uninviting appeals process.

VETERANS FOR COMMON SENSE v. SHINSEKI 6369

Court’s view of the benefits and consequences of allowing

veterans to have legal representation is to be changed or mod-

ified, it will have to be done by the Supreme Court itself, and

not by a circuit court.

Although Veterans challenge a wider array of procedural

restrictions than those at issue in Walters, the Supreme

Court’s analysis is directly applicable to the case before us.

Underlying all the procedural restrictions cited by Veterans is

what the Court has already held to be the government’s inter-

est in the creation and preservation of a non-adversarial sys-

tem. Instead of allowing for paid attorneys to represent

claimants and formal discovery, Congress imposed on the VA

a duty to assist claimants in substantiating their claims for

benefits. See 38 U.S.C. § 5103A. Veterans have failed to

make a strong showing that the current system carries with it

a high probability of error or that a more formal process

would decrease the probability of error. Accordingly, we

affirm the district court’s ruling.

V

Finally, Veterans contend that the district court erred in

refusing to compel discovery of all suicide incident briefs and

refusing to compel a response to an interrogatory seeking the

average number of days PTSD claims take at the RO level.

We review for abuse of discretion the district court’s dis-

covery rulings and management of the trial. “[B]road discre-

tion is vested in the trial court to permit or deny discovery,

and its decision to deny discovery will not be disturbed except

upon the clearest showing that denial of discovery results in

actual and substantial prejudice to the complaining litigant.”

Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (quoting

Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)). To

succeed on this challenge, Veterans must show “actual and

substantial prejudice” resulted from the discovery rulings.

Hallett, 296 F.3d at 751.

6370 VETERANS FOR COMMON SENSE v. SHINSEKI

A. Suicide Incident Briefs

At a status conference, Veterans sought to compel discov-

ery of suicide incident briefs — reports prepared by the VA

following the suicide or attempted suicide of a veteran under

VA care. The VA represented that there are 15,000 suicide

incident briefs that would be subject to extensive redaction

and argued that the redacted suicide incident briefs would be

of little probative value. The district court asked Veterans

what they would do with that information. Veterans

responded: “I think it would potentially subject to analysis . . .

to try to amalgamate the data across the system to show in

practice how the procedures and policies that are in place with

respect to mental health care, in fact, the small—.” The dis-

trict court interjected “I don’t think I have any authority to

talk about their policies,” and thereafter denied Veterans’s

motion to compel production.

Veterans claim that full discovery of all suicide incident

briefs would have allowed them to establish links between the

VA’s failure to comply with its policies and procedures and

veterans’ suicides. Veterans, however, do not argue how they

were prejudiced by the discovery ruling in the context of their

specific APA and due process claims. There is no contention

that the suicide incident briefs would have allowed Veterans

to fulfill the APA’s statutory requirements for judicial review

set forth at 5 U.S.C. § 706(1) and delineated in Norton. It is

possible that access to the suicide incident briefs might have

provided Veterans with additional useful material in support

of their due process claim concerning veterans’ inability to

appeal administrative scheduling decisions that delay neces-

sary mental health care. However, such material is not neces-

sary for Veterans to make out a valid claim — indeed, as we

hold above, their eligibility for relief under Mathews has

already been established by the district court’s factual find-

ings. In light of our holding reversing and remanding this case

to the district court for the entry of an appropriate order reme-

dying the due process violation that Veterans have suffered

VETERANS FOR COMMON SENSE v. SHINSEKI 6371

because of the VHA’s delay in the provision of mental health

care, we conclude that it is unnecessary to address this discov-

ery issue.

B. Average Time for Processing PTSD Claims at the RO

Level

Veterans also sought to compel a response to their interrog-

atory requesting the average amount of time it takes to pro-

cess PTSD compensation claims at the Regional Office level.

During the trial, Veterans raised the issue with the district

court. The VA represented that Michael Walcoff, then Deputy

Under Secretary for Benefits in the Department of Veterans

Affairs,40 would testify as to what data the VA has and why

the VA cannot produce the data sought by Veterans. After

Walcoff testified, Veterans filed a motion to compel by letter

contending that “Walcoff’s testimony, although consistent

with the explanation provided by counsel for Defendants,

does not support the ‘not available’ interrogatory answer pro-

vided by Defendants.” The following day, April 29, 2008, the

court denied Veterans’s motion to compel.

Veterans contend that the district court abused its discretion

in refusing to compel an answer to that interrogatory. We fail

to see how this specific information would bolster Veterans’s

APA or due process claims. Veterans’s statutory claims are

foreclosed for the reasons we discuss above. Veterans’s due

process arguments concerning delays in claims adjudication

focus on the time it takes to appeal benefits determinations.

At the RO level, Veterans claim only that the failure to pro-

vide more formal procedures for adjudicating benefits claims

and the VA’s use of a procedure to reduce benefits awards

system violates due process. Veterans make no argument as

to how further information on delays in processing PTSD

claims at the RO level would support their due process claims

40

Walcoff was appointed Acting Under Secretary for Benefits in the

Department of Veterans Affairs on Jan. 4, 2010.

6372 VETERANS FOR COMMON SENSE v. SHINSEKI

regarding RO-level procedures. In the absence of any show-

ing of how this additional information would have strength-

ened Veterans claims, we affirm the district court’s ruling on

this issue.

CONCLUSION

The United States Constitution confers upon veterans and

their surviving relatives a right to the effective provision of

mental health care and to the just and timely adjudication of

their claims for health care and service-connected death and

disability benefits. Although the terms of the Administrative

Procedure Act preclude Veterans from obtaining relief in our

court for their statutory claims, their entitlements to the provi-

sion of health care and to veterans’ benefits are property inter-

ests protected by the Due Process Clause of the Fifth

Amendment. The deprivation of those property interests by

delaying their provision, without justification and without any

procedure to expedite, violates veterans’ constitutional rights.

Because neither Congress nor the Executive has corrected the

behavior that yields these constitutional violations, the courts

must provide the plaintiffs with a remedy. We therefore

remand this case to the district court with the instruction that,

unless the parties resolve this

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