Vietnam Veterans of America v. Shinseki

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2010 Decided March 19, 2010

No. 09-5260

VIETNAM VETERANS OF AMERICA AND VETERANS OF

MODERN WARFARE,

APPELLANTS

v.

ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS SECRETARY

OF THE DEPARTMENT OF VETERANS AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01934-RBW)

Robert E. Cattanach argued the cause for appellants. With

him on the briefs were Frederick G. Jauss IV and Creighton R.

Magid.

Charles W. Scarborough, Attorney, U.S. Department of

Justice, argued the cause for appellee. With him on the brief

was William G. Kanter, Attorney. R. Craig Lawrence, Assistant

U.S. Attorney, and Ronald J. Wiltsie II, Attorney, entered

appearances.

2

Before: GINSBURG and KAVANAUGH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Appellants are two

veterans associations appealing the district court’s dismissal of

their suit alleging that the Department of Veterans Affairs

violated the APA and the Constitution (due process clause)

because of the average time it takes the VA to process veterans’

claims. The district court held that it lacked jurisdiction and we

agree, although for somewhat different reasons.

I

Congress has created a number of programs that provide

monetary benefits to America’s veterans and their families. One

of the largest such programs provides disability benefits to

veterans for service-related injury or disease. Approximately

3.4 million veterans currently receive disability benefits from

the VA.

Veterans who seek disability benefits must file a claim with

the VA at one of its 57 regional offices throughout the country.

The VA is required by statute to assist veterans in developing

evidence to support their claims.1 The VA inter alia arranges

for and provides medical examinations when necessary, seeks

all government records relevant to a claim (such as military

service records and treatment records from VA medical

facilities), and makes reasonable efforts to acquire non-federal

records identified by the veteran. Once all relevant evidence has

been gathered, a VA “rating specialist” evaluates the claim.

1

See 38 U.S.C. § 5103, et seq.

3

This process is informal and non-adversarial. See Walters v.

Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 309-10

(1985). The rating specialist first determines whether the

disability is connected to eligible service, and if so, determines

a percent disability rating, a figure that, along with a statutory

schedule, determines the amount of assistance to which the

veteran is entitled. The VA issues award letters to veterans

entitled to compensation and informs veterans whose claims are

denied of the reasons for their denial.

Veterans who wish to contest this initial decision may do

so. They may (but are not required to) elect to have their claim

reviewed by a more senior rating specialist within the regional

office where the claim was initially adjudicated and, if still

dissatisfied, they may appeal to the Board of Veterans’ Appeals.

The Board, led by a chairman responsible to the Secretary of the

VA, conducts de novo review of presented claims. While the

Board only decides appeals after a claimant has been given the

opportunity for a hearing, these proceedings are also quite

informal. See id. at 310-11. Adverse decisions by the Board

can subsequently be appealed exclusively to the United States

Court of Appeals for Veterans Claims (“CAVC”), an

independent Article I federal court. The CAVC may review all

legal issues, including constitutional claims, and, notably, has

the power to “compel action of the Secretary unlawfully

withheld or unreasonably delayed.” Decisions of the CAVC

may be appealed to the United States Court of Appeals for the

Federal Circuit which has authority to “decide all relevant

questions of law, including interpreting constitutional and

statutory provisions.”2 Further review, of course, may be sought

in the United States Supreme Court.

2

38 U.S.C. § 7261(a); id. at § 7292(d)(1).

4

Congress has divested other federal courts of authority to

review certain decisions relating to benefits. Thus, 38 U.S.C. §

511 provides that, “[t]he 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 Secretary to veterans

or the dependents or survivors of veterans,” but, subject to a few

carefully defined exceptions (including the appeals process

outlined above), “the 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 mandamus or otherwise.” Congress, moreover,

specified that challenges to VA regulations may only be brought

in the Federal Circuit.

Over the last several years, various entities including the

Government Accountability Office, veterans service

organizations, and congressional committees have raised

concerns regarding the timeliness with which the VA system

processes claims for benefits. In a 2005 report to the Senate

Committee on Veterans’ Affairs, the GAO noted “large numbers

of pending claims and lengthy processing times” in the VA’s

disability program, and subsequent GAO testimony to a House

of Representatives subcommittee indicated that the VA’s

inventory of pending claims and their average time pending had

increased “significantly” over the previous 3 years.3

3

U.S. Gen. Accountability Office, GAO-05-749T, Claims

Processing Problems Persist and Major Performance Improvements

May Be Difficult, 3 (2005); U.S. Gen. Accountability Office, GAO-

07-562T, Processing of Claims Continues to Present Challenges 3

(2007).

5

Congress has taken some steps to speed up the claim

processing. In 2007, for example, Congress provided funding

to the VA to hire an additional 3,100 employees, the vast

majority of which were hired into the division responsible for

processing disability claims. Congress also recently enacted a

law requiring that the VA establish a pilot program in 10 of its

regional offices under which fully developed disability claims

(a subset of claims where no additional evidence need be

collected) are adjudicated within 90 days.4 Congress has not,

however, enacted any statutory deadlines that would require the

VA to adjudicate all disability claims within a definite time

period.

Unsatisfied with these measures, two advocacy groups for

veterans, Vietnam Veterans of America and Veterans for

Modern Warfare filed a complaint which alleged that the VA

was in violation of the Administrative Procedure Act and the

Due Process Clause of the Constitution (as well as federal

statutes that require the VA to provide “expeditious treatment”

to claims that are remanded from the CAVC to the VA, see 38

U.S.C. § 7112, and from the Board back to the VA regional

office, see id. at § 5109B) because it generally takes too long for

a veteran to get relief. The plaintiffs sought a declaratory

judgment as well as an injunction requiring the VA to issue “an

initial decision on every veteran’s claim for benefits within 90

days” and to “ensure that appeals of claims decisions are

resolved within 180 days.”

The complaint seeks a ruling that the VA’s entire disability

benefits processing system is illegal. It does not suggest the time

4

See Veterans’ Benefits Improvement Act of 2008, Pub. L. 110-

389, 122 Stat. 4145 (Oct. 10, 2008).

6

the VA has taken to adjudicate the claim of any single veteran

is unreasonably long, but rather alleges that the average time the

VA has taken to reach initial decisions at the regional office

stage, the average time the Board takes to resolve appeals, and

the average time it takes the regional offices to resolve claims

remanded by the Board are all unreasonably long. The

plaintiffs, moreover, actually disavow any intention of seeking

relief in any individual claim by stating, “[t]o the extent any of

the facts presented herein apply to individuals rather than to

veterans as a whole, they are intended for illustrative purposes

only. Nothing in this complaint is intended as, nor should it be

construed as, an attempt to obtain review of an individual

determination by the VA or its appellate system.”

The district court denied the plaintiffs’ motion for a

preliminary injunction and, in a published order, granted the

VA’s motion to dismiss on the grounds that plaintiffs lacked

standing because they sought to impose on the VA a “uniform

timeline for assessing these claims even though the claims are

not monolithic.” And the court stated that the plaintiffs were not

“likely to have the injuries redressed by a favorable decision due

to the plaintiffs’ failure to state a claim with respect to a

violation of the APA or the Due Process Clause.” (emphasis

added).

II

Appellants contend that the district court conflated the

merits of the case with standing. We agree. Whether or not

plaintiffs stated a claim – whether they had a cause of action –

goes to the merits of the case and, as we have held, the merits

must be assumed when considering standing. City of Waukesha

v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (per curiam). That

is not what is meant by redressability – the element of standing

7

that is virtually always merely the reciprocal of causation.

Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017

(D.C. Cir. 1997). As a separate element, it is implicated only

when the court’s power to redress an injury caused by an illegal

act is independently impaired. Renal Physicians Ass’n v. HHS,

489 F.3d 1267, 1278 (D.C. Cir. 2007).

But the government raises other jurisdictional arguments.

Perhaps most prominent is its contention that § 511 precludes

district court (and our) jurisdiction because appellants are

essentially challenging the Secretary’s conclusions of “law and

fact necessary to a [benefits] decision.” Appellants respond that

they are not challenging the Secretary’s actual decision in any

case, but rather his failure to decide cases in a timely manner.

Yet, one might think that inherent in any adjudicatory

decisionmaking process is an implicit determination as to when

the decision maker will get to the case. And in this situation we

are not dealing with a true judicial-like role, but rather

institutional decisionmaking by a huge department, implicating

resource allocation and management practices in which

necessarily the pace of decisionmaking would have had to be

addressed. Whether looking at an individual case or a mass of

cases, a decision or decisions as to when to issue opinions would

appear to be a preliminary decision necessary to a final decision

– and although more precisely an administrative determination,

it would seem to be covered by the broad cloak “law and fact”

phrase of § 511.

The government points to two of our cases in support, Price

v. United States, 228 F.3d 420 (D.C. Cir. 2000) (per curiam) and

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

a veteran claimed the VA had failed to provide him medical

benefits to which he was entitled. But the VA had decided he

was not entitled to those benefits, so clearly he was seeking to

8

challenge a decision of the Secretary. Id. at 975. In Price,

however, another case involving a claim for medical benefits,

we noted that “[t]he record does not reflect whether Price

pursued a formal reimbursement claim with the VA.

Nevertheless, because Price is challenging the VA’s action or

inaction with respect to a veterans’ benefits matter, the district

court lacked subject matter jurisdiction over the complaint.”

228 F.3d at 421 (emphasis added). We stated broadly then, and

repeated in Thomas, that § 511 barred a suit that challenged

whether the VA “acted properly” in making a benefit

determination. Id.; 394 F.3d at 975. That formulation would

appear to foreclose appellants’ recourse to our court.

Appellants, however, point to another case of ours, Broudy

v. Mather, 460 F.3d 106 (D.C. Cir. 2006), which seems to

support their position. In Broudy, we held that § 511 did not bar

a suit in our district court by veterans whose claim was that

officials at the Department of Defense and the VA had provided

faulty information concerning the plaintiffs’ alleged exposure to

radiation while serving in Japan – the true information was

allegedly “covered up” – and, as a result, the plaintiff’s benefits

had been denied. Id. at 109-10. We distinguished Price and

Thomas as cases in which the VA (the Secretary) had actually

made decisions that the plaintiff veterans were not entitled to

benefits and the plaintiffs were seeking a review of those

decisions, whereas in Broudy, the “Secretary” (really the Board)

never made a decision on the issues presented by the plaintiffs

– whether officials subordinate to the Secretary had covered up

relevant data – because that precise issue had not been presented

to the Secretary (the Board). We indicated that only questions

“explicitly considered” by the Secretary would be barred by

§ 511, not questions he could be “deemed to have decided” or,

presumably, implicitly decided. Id. at 114 (emphasis added).

Appellants urge that neither the Secretary or the Board has

9

explicitly considered whether the delays alleged in this case

violate the law and so their claims are not precluded.5

Undeniably, as the government suggested, there is tension

between Price and Thomas on the one hand and Broudy on the

other – particularly in light of our recognition in Price that the

record did not even indicate whether the plaintiff had actually

brought his reimbursement claim. (Moreover, as an added point

in the government’s favor, we note that § 511 expressly

precludes a mandamus action – the common law writ designed

to deal with unreasonable delay.) We need not seek to resolve

the tension between our cases, however, because we perceive

another jurisdictional ground upon which we may more

comfortably rely.

The government contends that a second jurisdictional defect

undermines appellant’s case – that APA Section 704 precludes

the suit because that section authorizes review only if a party

lacks an adequate remedy, and as the government contends, any

veteran can bring an unreasonable delay action in the CAVC.

Both the Sixth and Eighth Circuits have denied veterans claims

on just this basis. See, e.g., Beamon v. Brown, 125 F.3d 965,

967-70 (6th Cir. 1997); In re Russell, 155 F.3d 1012, 1013 (8th

Cir. 1998) (per curiam). Indeed, this conclusion – whether or

not jurisdictional (the Sixth Circuit thought it was) – appears to

be unassailable as the CAVC possesses the exact same authority

to deal with excessive delay in its statute that district courts have

5

In reaching this conclusion we relied on the Federal Circuit’s

opinion in Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000).

10

under the APA. Compare 38 U.S.C. § 7261(a)(2) with 5 U.S.C.

§ 706(1).6

To be sure, the question of whether the plaintiffs could have

pursued individual due process claims on behalf of their

members is somewhat different. Still a claim that a plaintiff has

been denied due process because of delayed agency action is

essentially no different than an unreasonable delay claim;

indeed, if there is any difference at all, it is that an unreasonable

delay claim would likely be triggered prior to a delay becoming

so prolonged that it qualifies as a constitutional deprivation of

property. See Schroeder v. City of Chicago, 927 F.2d 957, 960

(7th Cir. 1991) (explaining that a due process claim premised on

delay occurs when “delay . . . ripen[s] into deprivation”). For

6

In response to questions raised at oral argument, plaintiffs

submitted a Rule 28(j) letter in which they contended that the CAVC’s

authority to compel unreasonably delayed VA action would not be an

adequate alternative remedy even for claims brought by individual

veterans. Plaintiffs argue that because the CAVC only has jurisdiction

of final decisions by the Board of Veterans’ Appeals, the CAVC is

powerless to order the VA to act when the veteran is still waiting for

a decision. But the CAVC has power to issue writs of mandamus

compelling VA officials to take action that has been unreasonably

delayed even if there has been no final decision by the Board. See,

e.g., Erspamer v. Derwinski, 1 Vet. App. 3, 6-9 (Ct. Vet. App. 1990).

And it can hardly be contended that the CAVC’s power to compel

delayed action through mandamus is an inadequate alternative to a

district court’s power to compel delayed agency action under the APA

– the standards for obtaining relief are essentially the same. See In re

Core Communications Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (“The

central question in evaluating a claim of unreasonable delay [under the

APA] is whether the agency’s delay is so egregious as to warrant

mandamus.”) (quotation omitted).

11

much the same reasons that courts do not tolerate litigants’ artful

attempts to avoid the Court of Federal Claims by phrasing

complaints as seeking injunctive relief when a money judgment

would provide an adequate remedy, see Consolidated Edison v.

U.S. Dep’t of Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001)

(collecting cases), it seems unlikely plaintiffs would be

permitted to pursue due process claims in district court that are

no different (they may be even more difficult to establish) than

unreasonable delay claims that must be brought in the CAVC.

If plaintiffs were able to circumvent the CAVC’s

jurisdiction by creative pleading, district courts would be forced

to issue unnecessary constitutional decisions when a statutory

ground for the decision would do. Plaintiffs would be able to

seek the same exact relief in multiple fora – bringing the due

process claim in the district court and the unreasonable delay

claim in the CAVC – despite the general rule proscribing the

splitting of a cause of action. See, e.g., Wilson v. Johns-

Manville Sales Corp., 684 F.2d 111, 117 (D.C. Cir. 1982).

Absent some indication Congress intended such a strange result,

we think it doubtful it should be sanctioned. As we recognized

in Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1507

& n.119 (D.C. Cir. 1990), the “rule proscribing the splitting of

an indivisible cause of action” is one of several rules “designed

to minimize expense and inconvenience to litigants and conserve

the finite resources of the courts,” and that “[a]bsent plain

statutory language or convincing indication to the contrary”

federal courts should not presume Congress wished to uproot

such principles. See also Doleman v. Levine, 295 U.S. 221, 226

(1935) (“But the [statute] does not purport to split the cause of

action. A purpose to do violence to the firmly grounded tradition

of the unity of a cause of action at law, by casting on the

defendant the burden of defending two suits, is hardly to be

implied.”). Thus assuming an APA claim based on

12

unreasonable delay must be brought in the CAVC, we think it

virtually inevitable that it would be held that the CAVC has

exclusive jurisdiction to hear due process claims premised on

the same delay.7

Our discussion of this issue is tentative, however, because

again we encounter some conflict in our own opinions – this

time as to whether the APA’s reviewability provision (§ 704) is

jurisdictional and, therefore, whether it is properly considered

anterior to any merits questions. In a line of our cases stretching

from the 1980s to 2005, we repeatedly stated – and held – that

the APA’s reviewability provisions were jurisdictional.8 We did

7

Nor do we think Webster v. Doe, 486 U.S. 592 (1988) requires

that the district court remain open to the constitutional claim. In that

case, a former CIA employee alleged that he was fired because he was

a homosexual and that this violated the Administrative Procedure Act

and the Constitution. The Supreme Court held that although he could

not obtain judicial review under the APA because such decisions were

committed to the agency's discretion by law, id. at 600-01, a court

could review constitutional claims based on the same allegation. The

court explained that without a clear statement from Congress that it

intended to do so, the Court would avoid the “serious constitutional

question that would arise if a federal statute were construed to deny

any judicial forum for a colorable constitutional claim.” Id. at 603.

That constitutional question avoided by the Court in Doe would not be

a factor here – even if review of the due process claim is not available

in the district court, the CAVC could still hear it (as well as the

essentially identical unreasonable delay claim). See Beamon, 125 F.3d

at 969.

8

See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 746 (D.C. Cir.

1987) (opinion of Williams, J.); Public Citizen v. Office of the U.S.

Trade Reps., 970 F.2d 916, 918 (D.C. Cir. 1992); DRG Funding Corp.

v. Sec’y of HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996); Indep.

13

so notwithstanding a footnote in a Supreme Court opinion, Air

Courier Conference v. Am. Postal Workers Union, 498 U.S. 517,

523 n.3 (1991), observing that the judicial review provisions of

the APA are not jurisdictional.9

Nevertheless, in 2006, we changed course in Center for

Auto Safety v. NHTSA, 452 F.3d 798, 805 (D.C. Cir. 2006),

followed a month later by Trudeau v. FTC, 456 F.3d 178 (D.C.

Cir. 2006).10 In both cases we relied on a party’s argument in a

previous case, Reliable Automatic Sprinkler v. Consumer Prod.

Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003), in which

we actually declined to resolve the issue. And in Trudeau, we

referred to our previous line of cases as only “loosely” referring

to the APA’s review provision as jurisdictional. 456 F.3d at

184. Trudeau also relied upon Arbaugh v. Y & H Corp., 546

U.S. 500 (2006). While not an APA case, Arbaugh did state that

statutes should be treated as nonjurisdictional unless Congress

clearly indicates otherwise, thus further undermining our

jurisdictional holdings. Id. at 515-16. We think the proposition

that the review provisions of the APA are not jurisdictional is

now firmly established. We therefore pass on to another

Petroleum Ass’n v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001); Nat’l

Ass’n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005).

9

The Supreme Court relied on Califano v. Sanders, 430 U.S. 99

(1977) for this proposition. But Califano held only that the APA

generally does not afford an implied grant of subject-matter

jurisdiction. Id. at 107.

10

The court does have a method – the Irons footnote – which

allows the full court to endorse such a reversal of course without full

en banc rehearing. See Irons v. Diamond, 670 F.2d 265, 268 n.11

(D.C. Cir. 1981).

14

jurisdictional difficulty, a variation of the standing issue upon

which the district court rested.

It is settled law that an association has standing to sue only

if at least one member would have standing on his or her own

right. Young America’s Foundation v. Gates, 573 F.3d 797, 799

(D.C. Cir. 2009). Appellants produced affidavits of members

whose cases were pending – in their view, much too long – to

establish injury.11 Yet appellants, in a rather apparent effort to

avoid the preclusive bite of both § 511 and § 704, went out of

their way to forswear any individual relief for the affiants.

Indeed, the asserted illegal action the VA has committed is

described as the average length of time it takes at each stage of

the claims process. But the average processing time does not

cause affiants injury; it is only their processing time that is

relevant. If, for example, affiants fell at the quick-processing

end of a bell-shaped curve, a high average processing time

would be irrelevant to them, and to reverse the analysis, a low

average would not avoid injury if affiants were at the other end

of the curve. In sum, assuming the alleged illegality – that the

average processing time at each stage is too long – that

“illegality” does not cause the affiants injury. And causation is

a necessary element of standing. Young America’s Foundation,

573 F.3d at 799.

11

The plaintiffs’ affidavits also reference members whose claims

have been fully processed and identify negative effects they suffered

while they waited for a decision. But veterans whose claims have

already been processed would no longer have standing to seek the

declaratory and injunctive relief plaintiffs seek in this case. City of

Los Angeles v. Lyons, 461 U.S. 95, 102-05 (1983).

15

If the affiants were suing by themselves – which is how we

must analyze the claim – asserting that the average time of

processing was too long, it would be apparent that they were

presenting a claim not for themselves but for others, indeed, an

unidentified group of others. But one can not have standing in

federal court by asserting an injury to someone else. See City of

Los Angeles v. Lyons, 461 U.S. 95, 108-09 (1983). It seems the

district judge intuited this point by noting the claims were “not

monolithic.”

For the foregoing reasons, the district court’s order granting

the motion to dismiss is affirmed.

So ordered.