BYBEE, Circuit Judge:
After a decade of war, many of our veterans are returning home with physical and psychological wounds that require competent care. Faced with the daunting task of providing that care, as well as adjudicating the claims of hundreds of thousands of veterans seeking disability benefits, the Department of Veterans Affairs ("VA")
Two nonprofit organizations, Veterans for Common Sense and Veterans United
We conclude that we lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans' benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. See 38 U.S.C. §§ 511, 7252, 7292; see also Yakus v. United States, 321 U.S. 414, 443, 64 S.Ct. 660, 88 L.Ed. 834 (1944). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). We conclude that the majority of VCS's claims must be dismissed for lack of jurisdiction. And where we do have jurisdiction to consider VCS's claims, we conclude that granting VCS its requested relief would transform the adjudication of veterans' benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 323-24, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). The Due Process Clause does not demand such a system.
As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction. We conclude that the district court lacked jurisdiction to resolve VCS's claims for system-wide implementation of the VA's mental health care plans, as well as VCS's request for procedures intended to address delays in the provision of mental health care. We similarly determine that the district court lacked jurisdiction to consider VCS's statutory and due process challenges to delays in the system of claims adjudication. We do conclude, however, that the district court had jurisdiction to consider VCS's claims related to the adjudication procedures in VA Regional Offices and that the district court properly denied those claims on the merits.
We therefore affirm the district court in part, reverse in part, and remand with instructions to dismiss the case.
There are approximately 25 million veterans in the United States and, as of May 2007, between 5 and 8 million of those veterans were enrolled with the VA.
In 2007, two nonprofit organizations, Veterans for Common Sense and Veterans United for Truth, filed suit in the Northern District of California. On behalf of themselves, their members, and a putative class of veterans with post-traumatic stress disorder ("PTSD") eligible for or receiving medical services, and veterans applying for or receiving service-connected disability benefits, VCS seeks sweeping declaratory and injunctive relief. Such relief is warranted, VCS alleges, because the VA's handing of mental health care and service-related disability claims deprives VCS of property in violation of the Due Process Clause of the Constitution and violates the VA's statutory duty to provide timely medical care and disability benefits. VCS specifically disavows seeking relief on behalf of any individual veteran, but instead challenges "average" delays in the VA's provision of mental health care and disability benefits. Compl. ¶¶ 12, 38-39. We briefly summarize VCS's claims.
First, with respect to the VHA's duty to provide veterans with mental health care, VCS challenges VHA procedures that allegedly result in delayed care. Id. ¶¶ 31, 184-200, 277. VCS also challenges the lack of procedures for veterans to expedite that care. Id. ¶¶ 31, 277. VCS therefore asked the district court to declare, among other things, that the lack of procedures to remedy delays in the provision of medical care and treatment violates due process. Id. ¶¶ 31, 258-60. VCS also seeks to enjoin the VA from permitting protracted delays in the provision of mental health care and to compel the VHA to implement governmental recommendations for improving the provision of mental health care.
Second, VCS challenges VBA delays in the adjudication and resolution of disability-compensation claims under both the Administrative Procedure Act ("APA") and the Due Process Clause of the Fifth Amendment. Id. ¶¶ 31, 145-83, 277. VCS asserts that the adjudication of those claims, which begins at one of the VA's 57 Regional Offices and proceeds through the Board of Veterans' Appeals, the Court of Appeals for Veterans Claims ("Veterans Court"),
Finally, VCS challenges the constitutionality of numerous VBA practices and procedures, including the absence of trial-like
After the district court denied in large part the VA's motion to dismiss, VCS requested a preliminary injunction on its mental health claims. The district court held an evidentiary hearing, but deferred ruling on the preliminary injunction, instead merging the request with a bench trial on the merits that would address all of VCS's claims.
The district court held a seven-day bench trial and, two months later, issued a comprehensive Memorandum of Decision, Findings of Fact and Conclusions of Law. See Veterans for Common Sense v. Peake ("Veterans"), 563 F.Supp.2d 1049 (N.D.Cal.2008). The district court denied VCS's various claims and concluded that ordering the relief requested by VCS would draw the district court into resolving when and how care is provided—a role that it was not equipped to undertake. Id. at 1080-82. First, with respect to the VHA's provision of mental health care, the district court rejected VCS's challenge because VCS failed to identify a discrete, final agency action that the VA was required to take. Id. at 1082-83; see 5 U.S.C. § 706(1); see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Similarly, the district court rejected VCS's due process claims challenging the VA's failure to provide timely and effective mental health care because the VA's health care system reflected "an appropriate balance between safeguarding the veteran's interest in medical treatment and permitting medical treatment without overly burdensome procedural protections." Veterans, 563 F.Supp.2d at 1082.
With respect to the VBA's administration of service-related disability compensation, the district court denied VCS relief on the grounds that both 38 U.S.C. § 511 and § 502 precluded its review. The court reasoned that, because "[t]he issue ... of whether a veteran's benefit[s] claim adjudication has been substantially delayed will often hinge on specific facts of that veteran's claim," it lacked jurisdiction under 38 U.S.C. § 511(a) to review the causes of delayed adjudication. Id. at 1083-84. It likewise found that ordering the VBA to remedy delays by implementing new procedures would "invariably implicate VA regulations," review of which may be conducted only by the Federal Circuit under 38 U.S.C. § 502. Id. at 1084. The district court, however, reached the merits of VCS's disability-based claims, but concluded that neither delays in the VBA's Regional Offices' adjudication of disability-related claims, nor the lack of trial-like protections for veterans raising such claims, was unreasonable under the APA or violative of due process. Id. at 1085-86. The district court therefore denied VCS's request for a permanent injunction and declaratory relief, and granted judgment in favor of the VA. Id. at 1092.
Before we may address VCS's claims on the merits, we must consider the government's argument that the Veterans' Judicial Review Act, Pub.L. No. 100-687, div. A, 102 Stat. 4105 (1988) ("VJRA"), codified at various sections in Title 38, deprives us of jurisdiction over these claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that a court must have jurisdiction to reach the merits). We first review the history of the VJRA and Congress's long-held concern with judicial intrusion into the VA's handling of veterans' requests for benefits. We then consider the way in which the courts have construed the provision in the VJRA that precludes review of VA decisions, 38 U.S.C. § 511.
Article III confers "[t]he judicial Power of the United States" on a supreme court and "such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1. The "judicial Power" vested in such courts "extend[s] to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." Id. art. III, § 2, cl. 1. Article III is not self-executing, however, so the jurisdiction of inferior federal courts depends on an affirmative statutory grant. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 33, 3 L.Ed. 259 (1812) ("[Only] the Supreme Court[] possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer."). Article III's "federal question jurisdiction" is statutorily conferred on federal district courts in 28 U.S.C. § 1331, which VCS cites as the source of the district court's jurisdictional authority. That section provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. But the fact that federal courts are vested with such jurisdiction over "all civil actions" does not mean that all federal courts may exercise jurisdiction over all such civil actions. The Constitution also grants to Congress the power to control federal court jurisdiction through "such Exceptions, and under such Regulations as the Congress shall make." U.S. Const. art. III, § 2, cl. 2; see Palmore v. United States, 411 U.S. 389, 400-01, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973) (holding that Congress is not required to vest inferior federal courts "with all the jurisdiction it was authorized to bestow under Art. III"). And Congress is under no obligation to confer jurisdiction upon inferior federal courts equally; indeed, no court "can assert a just claim to jurisdiction exclusively conferred on another, or withheld from all." Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850) ("Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers.").
Our discussion will be brief because the history of judicial review of VA decisionmaking is a short one. Congress established the VA in 1930. Act of July 3, 1930, ch. 863, § 1, 46 Stat. 1016, 1016. Three years later, Congress prohibited judicial review of the VA's benefits decisions. Act of Mar. 20, 1933, ch. 3, § 5, 48 Stat. 8, 9 ("All decisions rendered by the Administrator under ... this title, or the regulations issued pursuant thereto, shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review ... any such decision."); see also Lynch v. United States, 292 U.S. 571, 587, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (construing the statute to "remove the possibility of judicial relief"). Congress has "consistently precluded judicial review of veterans' benefits determinations" thereafter. Larrabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499 (2d Cir.1992).
Over time, however, exceptions to the preclusion provision began to appear. This development occurred most notably in the D.C. Circuit, see, e.g., Tracy v. Gleason, 379 F.2d 469, 472-73 (D.C.Cir.1967), where a "procession of decisions ... `significantly narrow[ed] the preclusion statute'" and limited its application to bar review of challenges related to initial filing of claims. Larrabee ex rel. Jones, 968 F.2d at 1500 (quoting Note, Judicial Review of Allegedly Ultra Vires Actions of the Veterans' Administration: Does 38 U.S.C. § 211(a) Preclude Review?, 55 Fordham L.Rev. 579, 596 (1987) (alteration in original)). In response to the D.C. Circuit's "fairly tortured construction" of the jurisdictional limitation, in 1970 Congress reemphasized its "clear" intent that the "exemption from judicial review ... be all inclusive," and it amended the statute to "provide that except for certain contractual benefits, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration" shall be unreviewable. H.R.Rep. No. 91-1166 at 10 (1970), reprinted in 1970 U.S.C.C.A.N. 3723, 3730-31. The result was 38 U.S.C. § 211,
Four years later, the Supreme Court interpreted § 211 in the context of an equal protection challenge to statutes related to veterans' benefits. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The Supreme Court held that § 211 precluded only review of decisions "that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans." Id. at 367, 94 S.Ct. 1160 (emphasis added). Declaring that construing § 211 to eliminate all federal court review of constitutional
Fourteen years after deciding Robison, the Supreme Court revisited the jurisdictional limitations of § 211 in Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988). There, the Court held that § 211 did not bar federal courts from reviewing whether the VA's regulations conflicted with § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which requires that federal programs not discriminate against handicapped individuals solely because of their handicap. Traynor, 485 U.S. at 545, 108 S.Ct. 1372. Section 211(a), the Court said, "insulates from review decisions of law and fact ... made in interpreting or applying a particular provision of that statute to a particular set of facts." Id. at 543, 108 S.Ct. 1372. The Court noted that the VA had no "special expertise in assessing the validity of its regulations" against "a later passed statute of general application." Id. at 544, 108 S.Ct. 1372. The Court doubted that permitting federal court review would interfere with the VA or burden the agency with "expensive and time-consuming litigation." Id. (internal quotation marks omitted). The Court invited the VA to "seek[ ] appropriate relief from Congress" if "experience proves otherwise." Id. at 544-45, 108 S.Ct. 1372.
Congress responded almost immediately to the Court's invitation in Traynor. For Congress, Traynor threatened to increase the judiciary's involvement in "technical VA decision-making." See H.R.Rep. No. 100-963, at 20-21, 27 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5802-03, 5809-10. In order to dissuade the judiciary from ignoring "the explicit language that Congress used in isolating decisions of the Administrator from judicial scrutiny," id. at 21, 1988 U.S.C.C.A.N. at 5802, Congress overhauled both the internal review mechanism and § 211 in the VJRA. Pub.L. No. 100-687, 102 Stat. 4105.
The VJRA made three fundamental changes to the procedures and statutes affecting review of VA decisions. First, the VJRA placed responsibility for reviewing decisions made by VA Regional Offices and the Board of Veterans' Appeals in a new Article I court, the United States Court of Appeals for Veterans Claims. 38 U.S.C. §§ 7251, 7261. As Congress explained, the creation of the Veterans Court was "intended to provide a more independent review by a body which is not bound by the Administrator's view of the law, and that will be more clearly perceived as one which has as its sole function deciding claims in accordance with the Constitution and laws of the United States." H.R.Rep. No. 100-963, at 26, 1988 U.S.C.C.A.N. at 5808. The statute also "provide[d] claimants with an avenue for the review of VA decisions that would otherwise have been unreviewable" under prior veterans-related legislation. Beamon v. Brown, 125 F.3d 965, 972 (6th Cir.1997).
Congress indicated that the Veterans Court's authority would extend to "all questions involving benefits under laws administered by the VA. This would include factual, legal, and constitutional questions." H.R.Rep. No. 100-963, at 5, 1988 U.S.C.C.A.N. at 5786 (emphasis added). To that end, Congress conferred on the Veterans Court "exclusive jurisdiction" to review decisions of the Board of Veterans'
Second, decisions of the Veterans Court are reviewed exclusively by the Federal Circuit, which "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(a), (c), (d)(1).
Third and finally, Congress expanded the provision precluding judicial review, formerly § 211. Under the new provision, eventually codified at 38 U.S.C. § 511,
In sum, the VJRA supplies two independent means by which we are disqualified
We have had limited opportunity to address the scope of the jurisdictional limitation in § 511. In Chinnock v. Turnage, we noted that § 511 precluded our review of the VA's interpretation of a regulation that affected the denial of a veteran's disability benefits. 995 F.2d 889, 893 n. 2 (9th Cir. 1993). Then, in Hicks v. Small, we concluded that § 511 prevented us from considering a veteran's state tort claims brought against a VA doctor because adjudication of those claims "would necessitate a `consideration of issues of law and fact involving the decision to reduce Hicks' benefits,' a review specifically precluded by 38 U.S.C. § 511(a)." 69 F.3d 967, 970 (9th Cir.1995) (quoting Hicks v. Small, 842 F.Supp. 407, 413-14 (D.Nev.1993)). And in Littlejohn v. United States, we concluded that, although "the Federal Circuit[is] the only Article III court with jurisdiction to hear challenges to VA determinations regarding disability benefits," we could consider a veteran's Federal Tort Claims Act ("FTCA") claim alleging negligence against VA doctors because doing so would not "possibly have any effect on the benefits he has already been awarded." 321 F.3d 915, 921 (9th Cir.2003).
Similarly, most other circuits have not articulated a comprehensive test to determine the preclusive contours of § 511. That being said, a survey of cases from various circuits that have analyzed § 511 demonstrates some consistent, largely undisputed conclusions as to what § 511 does (and does not) preclude. In general, review of decisions made in the context of an individual veteran's VA benefits proceedings are beyond the jurisdiction of federal courts outside the review scheme established by the VJRA. This is true even if the veteran dresses his claim as a constitutional challenge, see Zuspann v. Brown, 60 F.3d 1156, 1159-60 (5th Cir. 1995) (finding no remedy for alleged constitutional violations because veteran was ultimately "complaining about a denial of benefits"); Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2d Cir.1994) ("[T]he courts do not acquire jurisdiction to hear challenges to benefits determinations merely because those challenges are cloaked in constitutional terms."); Larrabee ex rel. Jones, 968 F.2d at 1498 (dismissing veteran's due process
The Federal Circuit has also addressed the scope of § 511, albeit primarily in cases that do not involve a veteran's challenge to the VA's administration of benefits. In Hanlin v. United States, an attorney sued the VA for attorney's fees in the Court of Federal Claims, claiming a breach of implied contract under a fee arrangement with a veteran. 214 F.3d 1319, 1320 (Fed.Cir.2000). Although the government argued that § 511 precluded review in that court, the Federal Circuit disagreed, holding that "§ 511(a) does not require the Secretary to address such a claim and thus does not provide the VA with exclusive jurisdiction over [the attorney]'s claim." Id. at 1321. Then, in Bates v. Nicholson, the Federal Circuit held that a determination of whether to terminate the certification of an attorney to practice before the VA was subject to the jurisdiction of the Board of Veterans' Appeals. 398 F.3d 1355, 1365-66 (Fed.Cir.2005). Rejecting the concurrence's criticism that its decision needlessly expanded § 511, the court noted that § 511's preclusion "contemplates a formal `decision' by the Secretary or his delegate" and does not apply to every decision that may indirectly affect benefits. Id. at 1365.
The D.C. Circuit, in a series of cases, and the Sixth Circuit, in a case very similar to this one, have articulated the most comprehensive and relevant standard for determining the scope of § 511. See Broudy v. Mather, 460 F.3d 106, 115 (D.C.Cir.2006); Thomas v. Principi, 394 F.3d 970, 974 (D.C.Cir.2005); Price v. United States, 228 F.3d 420, 422 (D.C.Cir. 2000) (per curiam); Beamon, 125 F.3d at 971. In Price, the D.C. Circuit held that § 511 precluded the district court's jurisdiction to consider a veteran's claim for reimbursement of medical expenses because, in order for the court to resolve whether the VA had failed to reimburse the veteran, it "would require the district court to determine first whether the VA acted properly in handling Price's request for reimbursement." 228 F.3d at 422. As the court noted, "courts have consistently held that a federal district court may not entertain constitutional or statutory claims whose resolution would require the court to intrude upon the VA's exclusive jurisdiction." Id.
The D.C. Circuit confirmed this analysis in Thomas. There, the veteran brought an action under the FTCA in which he
The D.C. Circuit confirmed this test again in Broudy, 460 F.3d at 114-15, and also identified a situation in which § 511 did not preclude its jurisdiction. There, the plaintiffs sued the VA for allegedly withholding radiation test results, effectively denying the plaintiffs access to the courts. Id. at 109-10. The plaintiffs requested, among other things, the "immediate release of all relevant records and documents" and an injunction preventing future instances of such misconduct. Id. at 110. Distinguishing the case from Price and Thomas, the D.C. Circuit held that it had jurisdiction to consider the plaintiffs' claims because those claims did not require the district court "to decide whether any of the veterans whose claims the Secretary rejected [we]re entitled to benefits." Id. at 115. Nor did their claims require the court to "revisit any decision made by the Secretary in the course of making benefits determinations." Id. (emphasis added). Thus, the D.C. Circuit concluded that it had jurisdiction. Id.
In addition to these cases from the D.C. Circuit, we find a closely analogous case in the Sixth Circuit's decision in Beamon v. Brown. In Beamon, the plaintiffs claimed that "the VA's procedures for processing claims cause[d] unreasonable delays, thereby violating their rights under the Administrative Procedure Act ... and under the Due Process Clause of the Fifth Amendment." 125 F.3d at 966. The Sixth Circuit held that "the VJRA explicitly granted comprehensive and exclusive jurisdiction to the [Veterans Court] and the Federal Circuit over claims seeking review of VA decisions that relate to benefits decisions under § 511(a)." Id. at 971 (emphasis added). The court therefore concluded that it could not hear "constitutional issues and allegations that a VA decision has been unreasonably delayed" by the inadequacies of the VA's procedures. Id. Because adjudicating the plaintiffs' claims would require the district court to "review individual claims for veterans' benefits, the manner in which they were processed, and the decisions rendered by the regional office of the VA" and the Board of Veterans' Appeals, "[t]his type of review falls within the exclusive jurisdiction of the [Veterans Court] as defined by [38 U.S.C.] § 7252(a)." Id. at 970-71.
Synthesizing these cases, we conclude that § 511 precludes jurisdiction over a claim if it requires the district court to review "VA decisions that relate to benefits decisions," Beamon, 125 F.3d at 971, including "any decision made by the Secretary in the course of making benefits determinations," Broudy, 460 F.3d at 115. This standard is consistent with Congress's intention to "broaden the scope" of the judicial preclusion provision, H.R.Rep. No. 100-963, at 27, 1988 U.S.C.C.A.N. at 5809, and is reflected in § 511(a)'s plain statement that we may not review a "decision by the Secretary under a law that affects the provision of [veterans'] benefits," 38 U.S.C. § 511(a). This preclusion extends not only to cases where adjudicating veterans' claims requires the district court to determine whether the VA acted properly in handling a veteran's request for benefits, but also to those decisions that may affect such cases. See Price, 228
In this case, we must determine whether VCS has raised claims that involve "questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary." 38 U.S.C. § 511(a). Under the VA's regulations, "benefit" is defined as "any payment, service, ... or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors." 38 C.F.R. § 20.3(e). Here, VCS claims that delays in the VHA's provision of mental health care and the VBA's adjudication of service-related disability benefits violate the VA's statutory obligations to provide veterans with care and, therefore, deprive veterans of "property" under the Due Process Clause. Mental health care and disability compensation are clearly "benefits," so any "question of fact or law" that "affects the provision of [them] by the Secretary" falls under the ambit of § 511. Accordingly, we turn first to VCS's various mental health claims and then to VCS's disability compensation claims to determine whether the district court had jurisdiction under § 511.
VCS claims that delays in the VHA's provision of mental health care violate the APA and the Due Process Clause.
Section 511 undoubtedly would deprive us of jurisdiction to consider an individual veteran's claim that the VA unreasonably delayed his mental health care. VCS attempts to circumvent this jurisdictional limitation by disavowing relief on behalf of any individual veteran, and instead proffering evidence of average delays to demonstrate statutory and constitutional violations.
VCS's allegations bear a close resemblance to those made by veterans' organizations who "went out of their way to forswear any individual relief for" veterans in a challenge to the VA's adjudication of benefits appeals recently considered by the D.C. Circuit. See Viet. Veterans of Am. v. Shinseki, 599 F.3d 654, 662 (D.C.Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 195, 178 L.Ed.2d 44 (2010). There, much like here, the veterans' organizations alleged that "[n]othing in this complaint is intended as ... an attempt to obtain review of an individual determination by the VA or its appellate system," id. at 658 (internal quotation marks omitted), and they submitted evidence of average delays in the VA's appellate process, id. at 657, 662. But, noting the plaintiffs' "rather apparent effort to avoid the preclusive bite" of § 511(a), the D.C. Circuit concluded that, by disavowing relief based on any individual veteran, the plaintiffs overlooked the fact that "the average processing time does not cause [veterans] injury; it is only their processing time that is relevant." Id. at 661-62. The court reasoned that even "assuming the alleged `illegality'—that the average processing time at each stage is too long—that illegality does not cause the [plaintiffs] injury." Id. at 662. This analysis led the D.C. Circuit to conclude that the plaintiffs lacked standing to pursue their claims. Id. ("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.").
Here, it may be that VCS similarly does not have standing for its claims, because a claim based on average harm seems contrary to the Supreme Court's requirement of a "particularized" harm that "affect[s] the plaintiff in a personal and individual way." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Nevertheless, because it is clear that there is an independent statutory bar to our jurisdiction, we need not reach the standing issue.
The fact that VCS couches its complaint in terms of average delays cannot disguise the fact that it is, fundamentally, a challenge to thousands of individual mental health benefits decisions made by the VA. In order to determine whether the average delays alleged by VCS are unreasonable, the district court would have to review the circumstances surrounding the VA's provision of benefits to individual veterans. The district court does not acquire jurisdiction over VCS's complaint just because VCS challenges many benefits decisions rather than a single decision. Indeed, an average processing time tells us nothing about the causes for such processing time. VCS alleges that the average processing time for mental health claims is too long, but the district court would have no basis for evaluating that claim without inquiring into the circumstances of at least a representative sample of the veterans whom VCS represents; then the district court would have to decide whether the processing time was reasonable or not as to each individual case. Cf. Viet. Veterans of Am., 599 F.3d at 662; Price, 228 F.3d at 422.
In sum, there is no way for the district court to resolve whether the VA acted in a timely and effective manner in regard to the provision of mental health care without evaluating the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those requests properly. We therefore lack jurisdiction to consider VCS's various claims for relief related to the VA's provision of mental health care, including its challenge to the lack of procedures by which veterans may appeal the VA's administrative scheduling decisions. See 38 U.S.C. § 511(a).
VCS next claims that the VA's system for adjudicating veterans' eligibility for disability benefits suffers from unconscionable delays and therefore violates the statutory and constitutional rights of veterans. The district court concluded that, because "determination of whether the delay[in benefits adjudication] is unreasonable may depend on the facts of each particular claim, § 511 prevents this Court from undertaking such a review." Veterans, 563 F.Supp.2d at 1083-84 (citation omitted).
Like VCS's challenge to delays in the VA's provision of mental health care, VCS's challenge to delays in the VA's adjudication of veterans' disability benefits plainly implicates questions of law and fact regarding the appropriate method of providing benefits to individual veterans. The district court cannot decide such claims without determining whether the VA acted properly in handling individual veterans' benefits requests at each point in the process. Section 511 deprives the district court of jurisdiction over such questions.
In reaching this conclusion, we find ourselves in accord with the Sixth Circuit, which resolved a similar question in Beamon v. Brown. There, a group of veterans "asked the district court to review the legality and constitutionality of the procedures that the VA uses to decide benefits claims." Beamon, 125 F.3d at 970. The Sixth Circuit concluded that the plaintiffs' claims raised questions of law and fact regarding the provision of benefits by the VA and that "[d]etermining the proper procedures for claim adjudication is a necessary precursor to deciding veterans benefits claims. Under § 511(a), the VA Secretary shall decide this type of question." Id. Because the plaintiffs alleged that "VA procedures cause unreasonable delays" in the resolution of benefits claims, "[t]o adjudicate this claim, the District Court would need to review individual claims for veterans' benefits, the manner in which they were processed, and the decisions rendered by the regional office of the VA and the BVA." Id. at 970-71.
VCS asserts that if the district court lacks jurisdiction to hear its claims, then it will be unable to secure adequate relief because compelling the VA to issue a decision on individual benefits is not the same as curing the deficiencies that cause widespread delay. To that end, VCS contends that the district court must retain jurisdiction over its "challenge to the administrative gridlock plaguing the adjudication" of benefits claims under the Supreme Court's decision in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160. VCS notes that the drafters of § 511 recognized that Robison "was correct in asserting judicial authority to decide whether statutes meet constitutional muster." H.R.Rep. No. 100-963, at 22, 1988 U.S.C.C.A.N. at 5803.
Although we discussed Robison in the context of § 511's history, it requires further discussion here. In Robison, a conscientious objector who completed alternative service was denied veterans' educational benefits under a program granting such benefits to persons who served full-time duty in the Armed Forces. 415 U.S. at 362-64, 94 S.Ct. 1160. He claimed that this violated the equal protection component of the Due Process Clause. Id. at 364-65, 94 S.Ct. 1160. The government argued that § 211, the predecessor to § 511, deprived the district court of jurisdiction. Id. Indeed, under the government's view of § 211, no court had jurisdiction to review the plaintiff's equal protection claims.
The Supreme Court held that the district court had jurisdiction. Although
Robison's warning of "serious questions" concerning statutes that preclude all judicial review is of limited application here. First, the fact that VCS drapes its claims in constitutional terms is not itself sufficient to confer jurisdiction on us. Numerous courts have recognized that § 511 broadly divests district courts of jurisdiction over constitutional claims related to benefits even where those claims concern agency procedures and do not challenge specific VA benefits determinations. See, e.g., Beamon, 125 F.3d at 971 ("[T]he VJRA explicitly granted comprehensive and exclusive jurisdiction to the CVA and the Federal Circuit over claims seeking review of VA decisions that relate to benefits decisions under § 511(a). This jurisdiction includes constitutional issues...."); Hall v. U.S. Dep't Veterans' Affairs, 85 F.3d 532, 535 (11th Cir.1996) (per curiam) (holding that a direct constitutional challenge to a VA regulation must be brought in the Federal Circuit); Hicks, 961 F.2d at 1370 ("These provisions amply evince Congress's intent to include all issues, even constitutional ones, necessary to a decision which affects benefits in this exclusive appellate review scheme."); Addington v. United States, 94 Fed.Cl. 779, 783 (2010) ("The exclusive remedy for claims of due process violations lies in the [Veterans Court].").
More importantly, nothing in the VJRA forecloses judicial review of constitutional questions as VCS suggests. After Robison read § 211 broadly, Congress "subsequently established the [Veterans Court], effectively stripping district courts of any such jurisdiction," Beamon, 125 F.3d at 973 n. 4; cf. Bates, 398 F.3d at 1364 (explaining that the VJRA's "specialized review process" exchanged court review for "independent judicial review of the [VA]'s final decisions by a new Article I Court"). But Congress did not leave veterans without a forum for their constitutional claims. When Congress created the Veterans Court, it expressly empowered that court to "decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary." 38 U.S.C.
Beyond the Veterans Court, Congress also ensured that an Article III court can review such claims. Congress granted the Court of Appeals for the Federal Circuit the "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). To drive the point home, Congress affirmed that the Federal Circuit "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." Id. § 7292(d)(1). In tandem, the availability of review by both the Veterans Court and the Federal Circuit evinces Congress's intent to protect the federal courts and the VA from time-consuming veterans' benefits litigation, while providing a specialized forum wherein complex decisions about such benefits can be made. Congress has fully answered the Supreme Court's "serious question" concerning the constitutionality of § 511's limitation on our jurisdiction.
In sum, Congress may have foreclosed our review of the VA's decisions related to claims adjudication, but it has not foreclosed federal judicial review in toto.
VCS argues that there is a lack of adequate procedures when veterans file their claims for service-related disability benefits at VA Regional Offices. In its complaint, VCS framed this claim as a challenge to the constitutionality of the VJRA, claiming that the statutes codified by the act deny veterans adequate procedural safeguards. See Compl. ¶ 202 ("The VJRA violates Plaintiffs' due process rights in a multitude of respects...."). On appeal, VCS argues that its members are denied due process because existing procedures do not provide necessary protections to veterans during the initial claims process. Procedures that VCS wishes to see implemented include a pre-decision hearing, discovery and subpoena power, and the retention of paid counsel to assist in the submission of an initial claim. The district court denied this claim on the merits, holding that the VA's procedures did not violate the Due Process Clause of the Fifth Amendment. Veterans, 563 F.Supp.2d at 1088-89. We agree with the district court.
The jurisdictional question is a complex and close one, but we conclude that we have jurisdiction over these claims. As we have discussed, we lack jurisdiction either if § 511 prohibits our jurisdiction, or if review of VCS's claim is entrusted to the exclusive review mechanism established by the VJRA. We first hold that § 511 does not bar our jurisdiction to consider this claim. We then conclude that VCS's claim does not fall within the exclusive jurisdiction of the Veterans Court or the Federal Circuit.
First, VCS has carefully structured its complaint to avoid § 511's preclusive effect. As pled, VCS asserts a facial challenge to the constitutionality of the VJRA based not on any average delays experienced by veterans, but on the absence in the statute of certain procedures VCS claims are necessary to safeguard veterans' rights. Were the former 38 U.S.C. § 211 applicable here, there is little doubt that we would have jurisdiction to hear this claim because the Supreme Court held that facial constitutional challenges were exempted from § 211's jurisdictional preclusion. See Robison, 415 U.S. at 366-74, 94 S.Ct. 1160. But since the enactment of the VJRA, the courts of appeals appear split on the issue of whether that portion of Robison's analysis survives the VJRA. We question, however, whether these courts have thoroughly analyzed the efforts Congress undertook to broaden § 511 and the concurrent effort it took to establish an exclusive review scheme for claims related to veterans' benefits. The Second and Fifth Circuits, as well as the Veterans Court, have affirmed that facial constitutional challenges to acts of Congress—including challenges brought by individual claimants—may be brought in federal district court despite § 511's broad preclusive mandate. See, e.g., Zuspann, 60 F.3d at 1159 (addressing whether the claimant's "complaint challenges the VA's decision to deny him benefits, or whether it makes a facial challenge to an act of Congress"); Larrabee ex rel. Jones, 968 F.2d at 1500 (the VJRA "precludes judicial review of non-facial constitutional claims"); Disabled Am. Veterans, 962 F.2d at 141 (same); Dacoron v. Brown, 4 Vet.App. 115, 119 (1993). The Eighth Circuit appears to have taken a different view. See Hicks, 961 F.2d at 1369-70 (concluding that provisions of the VJRA "amply evince Congress's intent to include all issues, even constitutional ones, necessary to a decision which affects benefits in [an] exclusive appellate review scheme"); see also Hall, 85 F.3d at 534-35 (recognizing that "[t]he Eighth Circuit Court of Appeals appears to have taken a different view" as to
Ultimately, we need not decide whether an individual seeking benefits would be barred by § 511 from bringing a facial constitutional challenge in the district court. The immediate question before us is whether VCS's challenge to the VJRA is similar to its claims challenging the conduct of the VHA and the delays in adjudication of service-related disability claims, which we have already concluded would require review of the circumstances of individual requests for benefits by veterans. Unlike those previous claims, reviewing the VA's procedures for filing and handling benefits claims at the Regional Offices does not require us to review "decisions" affecting the provision of benefits to any individual claimants. 38 U.S.C. § 511; see also id. § 5104 (requiring notice to a veteran of a "decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant"). Indeed, VCS does not challenge decisions at all. A consideration of the constitutionality of the procedures in place, which frame the system by which a veteran presents his claims to the VA, is different than a consideration of the decisions that emanate through the course of the presentation of those claims. In this respect, VCS does not ask us to review the decisions of the VA in the cases of individual veterans, but to consider, in the "generality of cases," the risk of erroneous deprivation inherent in the existing procedures compared to the probable value of the additional procedures requested by VCS. See Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Evaluating under the Due Process Clause the need for subpoena power, the ability to obtain discovery, or any of the other procedures VCS requests is sufficiently independent of any VA decision as to an individual veteran's claim for benefits that § 511 does not bar our jurisdiction.
Second, unlike VCS's challenge to delays in the administration of the benefits program, the exclusive review scheme established by the VJRA in 38 U.S.C. §§ 7252, 7261, and 7292 does not deprive us of jurisdiction over this claim. Although an
We conclude that we have jurisdiction over VCS's claim related to procedures affecting adjudication of claims at the Regional Office level. We are not precluded from exercising jurisdiction by either § 511 or the provisions conferring exclusive jurisdiction on the Veterans Court and the Federal Circuit.
Satisfied of our jurisdiction, we turn to the merits of this claim. We affirm the district court because the nonadversarial procedures at the Regional Office level are sufficient to satisfy due process. The district court conducted an analysis of the Mathews v. Eldridge factors and ruled that although "veterans and their families have a compelling interest in" their benefits, and "the consequences of erroneous deprivation can be devastating," the risk of error was low and the government's interest weighed strongly in favor of denying VCS the additional procedures requested.
We agree with the district court's analysis on this point and reproduce it here:
Id. (footnotes omitted).
We emphasize, as the district court did, that Congress purposefully designed a non-adversarial system of benefits administration. See Walters, 473 U.S. at 323-24, 105 S.Ct. 3180 (VA matters should be kept "as informal and nonadversarial as possible"); see also Nat'l Ass'n of Radiation Survivors v. Derwinski, 994 F.2d 583, 588-89 (9th Cir.1992) ("[I]n passing the [V]JRA Congress reaffirmed the government's interest [in an informal benefits administration system]...."). This is particularly true as it pertains to the retention of counsel during the initial claim phase, which the Supreme Court found "would seriously frustrate the oft-repeated congressional purpose" to maintain the non-adversarial bent of benefits administration. Walters, 473 U.S. at 323, 105 S.Ct. 3180. Although VCS challenges more procedural restrictions than just the lack of an attorney at the Regional Office stage, the Supreme Court's analysis in Walters compels a similar outcome. Subpoena power, discovery, pre-decision hearings, and the presence of paid attorneys would transform the VA's system of benefits administration into an adversarial system that would tend to reflect the rigorous system of civil litigation that Congress quite plainly intended to preclude. The choice between a vigorously adversarial system and a less adversarial one reflects serious policy considerations and is a permissible one. Congress must be afforded "considerable leeway to formulate" additional processes and procedures to cure deficiencies in the VA's administration of benefits "without being forced to conform to a rigid constitutional code of procedural necessities." Walters, 473 U.S. at 326, 105 S.Ct. 3180. Because VCS cannot overcome the paramount interest Congress has in preserving a non-adversarial system of veterans' benefits administration, we affirm the district court's ruling.
VCS's complaint sounds a plaintive cry for help, but it has been misdirected to us. As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it. The Constitution "protects us from our own best intentions" by "divid[ing] power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the
We conclude that the district court lacks jurisdiction to reach VCS's statutory and due process challenges to the alleged delays in the provision of mental health care and to the absence of procedures to challenge such delays. We likewise conclude that the district court lacks jurisdiction to reach VCS's claims related to delays in the adjudication of service-related disability benefits. We conclude that the district court has jurisdiction to consider VCS's challenges to the alleged inadequacy of the procedures at the Regional Office level, and properly exercised that jurisdiction to deny VCS's claim on the merits.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions to DISMISS. The panel opinion, Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir.2011), is hereby VACATED and shall not be cited as precedent by or to any court of the Ninth Circuit. Costs on appeal awarded to Defendants-Appellees.
SCHROEDER, Senior Circuit Judge, dissenting:
I agree with the majority's holding that the district court had jurisdiction to consider the claim brought by the plaintiff-veterans organizations that the procedures used in the handling of the initial filing of benefits claims are inadequate. I further agree with affirming the denial of that claim on the merits, because what Plaintiffs seek is inconsistent with the congressional purpose of simplified, nonadversarial proceedings. See Walters v. Nat'l Assoc. of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985).
Because I agree with the majority's holding that there is jurisdiction to consider that claim of inadequate procedures, however, I am confounded by the majority's holding that the district court lacked jurisdiction to consider claims that other procedural inadequacies are causing intolerable systemic delays in the VA's processing of benefits claims and in providing mental health services. While review of substantive benefits decisions is, of course, limited to the Court of Appeals for Veterans Claims (the "Court of Veterans Appeals")
The majority thus leaves millions of veterans—present, past, and future—without any available redress for claims that they face years of delay in having their rights to hard-earned benefits determined. No one could think this is just or what Congress intended.
The language and history of § 511 demonstrate instead to me that Congress did not leave veterans without any forum to challenge the way the system is operating. The district court should be able to hear a systemic challenge, because § 511 does not pertain to such a challenge. Section 511 is about actual benefits decisions. It refers to "questions of law and fact necessary to a decision by the Secretary." It then provides that the "decision of the Secretary as to any such question" shall be subject only to review by the veterans courts and Federal Circuit. See 38 U.S.C. §§ 7104(a), 7252(a), 7266(a), 7292(a). The purpose of the administrative veterans courts is to decide whether individual veterans are entitled to benefits. The statute therefore must be referring to an actual decision by the Secretary granting or denying benefits.
This is apparent from Congress' use of the term "decision" in the provision that requires the Secretary to give a claimant notice "of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant." 38 U.S.C. § 5104(a). This must mean a decision granting or denying benefits. It cannot include a decision to delay making a decision. Yet that is the senseless majority conclusion. See Op. at 1025, 1029 n. 20.
Plaintiffs do not challenge any "decision of the Secretary." Plaintiffs seek injunctive relief affecting the procedures that the Regional Offices, the Board of Veterans Appeals, and the Court of Veterans Appeals utilize to process and decide claims. The complaint alleges a denial of due process because allegedly unreasonable delays deprive Plaintiffs' members of property, i.e. benefits, without due process of law. Such a claim can be established by showing that there is a risk of wrongful deprivation. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Accordingly, I conclude the district court had jurisdiction to consider all of the claims alleged in Plaintiffs' complaint.
The fundamental flaw in the majority's reasoning is its mistaken assumption that adjudication of Plaintiffs' systemic delay claims requires individualized examination of actual benefits determinations. Plaintiffs' concern is not with the substance of any benefits decision. Their concern is with process. Courts have routinely considered claims that excessive delay has resulted in a denial of due process. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (delay of administrative hearing would at some point become a constitutional violation); Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (length of delay important factor); Kraebel v. NYC Dep't of Housing Pres. and Dev., 959 F.2d 395, 405 (2d Cir.1992); Schroeder v. City of Chicago, 927 F.2d 957, 960 (7th Cir.1991) ("Justice delayed is justice denied, the saying goes: and at some point delay must ripen into deprivation, because otherwise a suit alleging deprivation would be forever premature"); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir.1990) (delay in state appeal); Rodrigues v. Donovan, 769 F.2d 1344, 1348-49 (9th Cir.1985); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 490-91 (3d Cir. 1980) (four year delay in reviewing disability application). Indeed, the district court did decide the merits of Plaintiffs' claim of
There may be sound reasons for courts to be wary of intruding too much on the day-to-day operation of the executive branch. See Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). But § 511 should not be an absolute bar to district court jurisdiction for claims of due process denials on account of systemic delay. The principle which the majority announces for its contrary holding is that because of § 511, veterans cannot bring any constitutional challenge in district court that might affect a benefits decision, including the way it is processed. The case law does not support that principle.
The case law, as I understand it, reflects a clear delineation between claims that represent direct or indirect challenges to actual benefits decisions, and for which district court jurisdiction is lacking, and claims that would have no effect on the substance of any actual benefit award, and thus where § 511 is no bar. In the Ninth Circuit, our decisions in Chinnock v. Turnage, 995 F.2d 889 (9th Cir.1993), and Hicks v. Small, 69 F.3d 967 (9th Cir.1995), represent direct and indirect challenges to actual benefits decisions, where we properly found that district court jurisdiction was lacking. In Chinnock, the plaintiff-veteran brought a direct challenge in district court to the denial of his benefits by asking that court to review the VA's interpretation of a regulation that resulted in the denial. 995 F.2d at 890. We held the district court lacked jurisdiction. Id. In Hicks, the plaintiff filed a Bivens action in district court against a VA doctor for conduct that allegedly reduced his benefits, and we held this was also a challenge, albeit indirect, to the denial of benefits. 69 F.3d at 968-70. In contrast, we have held that a veteran can sue in district court for tort claims unrelated to his benefits determination. See Littlejohn v. United States, 321 F.3d 915 (9th Cir.2003). In Littlejohn, the plaintiff brought a Federal Tort Claims Act ("FTCA") action against VA doctors for negligence. Id. at 918. We held there was jurisdiction because adjudication of the tort claim would have no effect on his benefits award. Id. at 921.
The decisions of other circuits are in accord. In Weaver v. United States, 98 F.3d 518, 520 (10th Cir.1996), the Tenth Circuit held that where the veteran tried to sue the VA for conspiracy and fraud in concealing records that resulted in a denial of benefits, the district court lacked jurisdiction. Like our decision in Hicks, Weaver reflected an indirect challenge to the denial of benefits. The Eighth Circuit in In re Russell, 155 F.3d 1012 (8th Cir.1998) (per curiam), refused to issue a writ of mandamus to require the VA courts to act on a request for benefits pending in the Court of Veterans Appeals. Relying on Beamon v. Brown, 125 F.3d 965, 974 (6th Cir.1997), the Russell court reasoned that under the Veterans Judicial Review Act and the All Writs Act, only the Court of Veterans Appeals and Federal Circuit had the power to require the VA to act with respect to a particular claim for benefits. 155 F.3d at 1012-13.
Beamon is relied upon by the majority to support its holding, but Beamon is, in fact, consistent with my understanding of the cases. Beamon concerned a claim in the district court for injunctive relief by plaintiffs who were pursuing their individual claims for benefits in the VA administrative courts. 125 F.3d at 966. The Sixth Circuit held that under § 511, the plaintiffs' avenue of relief from the delay in each of their cases was to seek a writ of mandamus from the Court of Veterans
The federal courts have, in fact, repeatedly entertained challenges to statutes or procedures affecting the conduct of VA claims adjudication. The Second Circuit in Disabled American Veterans v. U.S. Department of Veterans Affairs, 962 F.2d 136, 137-38 (2d Cir. 1992), considered an equal protection challenge to a statute that eliminated the availability of veterans' family benefits in certain circumstances. The Second Circuit held there was jurisdiction to consider the equal protection challenge, because consideration of such a constitutional claim did not involve review of any individual benefits determination. Id. at 140-41; see also Larrabee ex rel. Jones, 968 F.2d 1497, 1501 (2d Cir.1992) (rejecting a challenge of inadequate care and noting that "district courts continue to have jurisdiction to hear facial challenges of legislation affecting veterans' benefits" (internal quotation marks and citation omitted) (emphasis in original)); Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir.1995) (district court would have jurisdiction over a facial challenge to an act of Congress).
Applying a similar principle, the D.C. Circuit in Broudy v. Mather, 460 F.3d 106, 108, 115 (D.C.Cir.2006), held the district court had jurisdiction to consider claims of veterans who contended VA officials denied them their constitutional right of meaningful access to administrative proceedings. The veterans alleged the VA withheld accurate information about their exposure to radiation and thereby rendered access to VA administrative proceedings meaningless. Id. at 108-11. Jurisdiction existed because the case was "not about whether they should have received Government compensation for their sickness," but whether they were denied meaningful access to administrative proceedings before the VA. Id. at 108.
The D.C. Circuit's decision in Broudy is particularly instructive here, because the court there reviewed its prior decisions in 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). These are decisions on which the majority here relies in concluding that § 511 has nearly universal sweep. Yet, as Broudy recognized, those cases actually concern attempts to second guess actual benefits determinations. See 460 F.3d at 114-15.
In Price, an individual veteran filed a complaint in the district court alleging that the VA wrongfully failed to reimburse him for certain medical expenses. 228 F.3d at 421. The D.C. Circuit held that even construing his complaint as alleging a federal tort claim for intentional or negligent failure to pay medical bills, the district court lacked jurisdiction because the plaintiff
Similarly, in Thomas, the VA had denied an individual veteran's claim for benefits, and the plaintiff-veteran filed a federal tort claim in district court. 394 F.3d at 972. He alleged claims that the VA committed medical malpractice by failing to inform him that he had a mental illness and in failing to provide him with medical services appropriate for his condition. Id. The court, following Price, held that only those allegations that the VA deprived him of medical care were barred by § 511, because review of such claims would require the "district court to determine first whether the VA acted properly in providing Thomas benefits." Id. at 974-75 (quoting Price, 228 F.3d at 422). The court held it did have jurisdiction over the claims alleging failure-to-inform, because they did not involve reviewing any issues decided by the VA in the benefits determination. Id. The Price and Thomas cases therefore do not support the majority.
The D.C. Circuit in Broudy later summed it up when it said that district courts "have jurisdiction to consider questions arising under laws that affect the provision of benefits so long as the Secretary has not actually decided them in the course of a benefits proceeding." 460 F.3d at 114. Broudy expressly rejected the government's argument (that had been premised on a phrase used in Price and quoted in Thomas) that § 511 barred any district court consideration of procedural matters relating to the conduct of benefits proceedings. Id. at 114-15. The relevant phrase in those cases described § 511's preclusive scope as encompassing "whether the VA `acted properly' in handling" the veterans claims for benefits. Id. at 115. The Government had contended that the phrase "acted properly" meant that the district court lacked jurisdiction to consider any suit that challenged any aspect of the handling of claims, including procedures. Id. at 114-15.
The D.C. Circuit in Broudy went to some pains to make it clear that the district court lacked jurisdiction to review only the "actual decisions" denying benefits. The court said:
Broudy, 460 F.3d at 112 (internal quotation marks and citations omitted) (emphasis in original). The D.C. Circuit has since confirmed this narrow interpretation of § 511's bar. See Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 659 (D.C.Cir.2010) (noting that in Broudy, it deemed "that only questions `explicitly considered' by the Secretary [in making a benefits determination] would be barred
The upshot of the majority's holding with respect to the claims of systemic delay is that veterans have no place to go to adjudicate such claims. The majority may believe that there is an adequate remedy for unreasonable delay by means of individual mandamus proceedings in the Court of Veterans Appeals or the Federal Circuit to require the VA administrative courts to act more promptly. Op. at 1028 n. 18, 1032. Yet such an extraordinary writ is rarely granted. See Erspamer v. Derwinski, 1 Vet.App. 3, 9-11 (1990) (declining to issue the writ even after concluding that a delay of ten years for benefits was unreasonable). The writ is not binding in any case other than the case in question, see Star Editorial, Inc. v. United States Dist. Court, 7 F.3d 856, 859 (9th Cir.1993) (reasoning that whether to grant the writ is based on the facts of the individual case), and thus would have no affect on the procedures that apply to the millions of potential claims represented by these Plaintiffs.
The majority's position appears to rest principally upon another aspect of the D.C. Circuit's opinion in Vietnam Veterans of America. The plaintiffs in that case framed their attack on the appeals process as an attack on "average" delay, rather than on delay in the handling of any particular case. Vietnam Veterans of Am., 599 F.3d at 661-62. The court held that since no plaintiff could show an injury caused by "average" delay, the plaintiffs lacked standing to assert the claim. Id. at 662. The court did not discuss whether the plaintiffs might use past evidence of aggregate delay to demonstrate a risk of a wrongful deprivation of property in the future. See Mathews, 424 U.S. at 335, 96 S.Ct. 893.
Vietnam Veterans focused on the causal relationship of the harm alleged in the complaint, "average delay," to the actual harm suffered by individuals. 599 F.3d at 661-62. The court concluded there was no causal nexus sufficient to confer standing. Id. The majority accepts this reasoning and goes much further to conclude that any claim to remedy a systemic delay must be treated as a challenge to individual benefits determinations, hence reviewable only in the Veterans Court of Appeals and Federal Circuit, and thus condemning veterans to suffer intolerable delays inherent in the VA system.
The majority's holding thus reduces itself to a "Catch 22": To challenge delays in the system, you must bring a systemic claim and not just an individual claim. But if you bring a systemic claim, it has to be treated as an individual claim and you must suffer the delays in the system. Get it?
38 U.S.C. § 211(a) (1970).
Compl. ¶ 39.
In this respect, VCS is much like the three veterans in Beamon who sought to represent a "class of similarly-situated veterans, to challenge the manner in which the [VA] processes claims for veterans' benefits," 125 F.3d at 966, which makes the dissent's reliance on that case all the more perplexing, Dissenting Op. at 1039. There, by the time the veterans' appeal reached the Sixth Circuit, two of the representative plaintiffs had received final decisions on the merits of their claims and the third was still waiting for a final decision. Beamon, 125 F.3d at 966. Those plaintiffs sought, like VCS here, to do more than merely litigate their individual claims to conclusion; rather, they challenged the "legality and constitutionality of the procedures that the VA uses to decide benefits claims." Id. at 970. The Sixth Circuit held exactly as we do here: "Determining the proper procedures for claim adjudication is a necessary precursor to deciding veterans benefits claims," and "[u]nder § 511(a), the VA Secretary shall decide this type of question." Id.
