Free Notice (Other) - District Court of California - California

Case 3:07-cv-03758-SC

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GORDON P. ERSPAMER (CA SBN 83364) MORRISON & FOERSTER LLP 101 Ygnacio Valley Road, Suite 450 P.O. Box 8130 Walnut Creek, California 94596-8130 Telephone: (925) 295-3300 Facsimile: (925) 946-9912 Attorney for Plaintiff(s) All Class Members Except Reason Warehime and NARS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATIONAL ASSOCIATION OF RADIATION SURVIVORS, et al., Plaintiffs, v. THOMAS K. TURNAGE, et al., Defendants. Case No. C-83-1861-MHP

PLAINTIFFS' REPLY IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (Class Action)

Case No. C-83-1861-MHP Plfs' Reply re Motion to Consider Related Cases wc-132655

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I.

INTRODUCTION Despite the overwhelming degree of overlap in factual and legal issues, the substantial

overlap in parties, and the extensive experience and knowledge about the VA system acquired by Judge Marilyn Hall Patel while presiding over the NARS case for over a decade, Defendants seek to have the VCS case assigned to a different judge. Unlike Judge Patel, a new judge would have to ascend a steep learning curve regarding the intricacies of the VA claims adjudication and health care systems, about which Judge Patel is already intimately familiar. Defendants' proffered rationale against Plaintiffs' related case motion is totally unconvincing. II. DEFENDANTS' ARGUMENTS A. Impact of VJRA

The primary argument raised by Defendants is that the $10 fee limitation statute challenged in the NARS Complaint was "superseded" by the VJRA. Defendants' Opposition to Plaintiffs' Administrative Motion to Relate Cases ("Def. Opp.") at 2:5. While this may be technically accurate, Judge Patel received extensive briefing totaling over fifty pages on the impact of the passage of the VJRA before issuing her decision. See November 21, 1988 Defendants' Notice of Filing the Veterans Judicial Review Act of 1988; December 1, 1988 Plaintiffs' Joint Response to Defendants' Notice of Filing the Veterans Judicial Review Act; and December 14, 1988 Defendants' Reply Concerning the Effect of the Veterans Judicial Review Act of 1988. Thus, the passage of the VJRA actually supports Plaintiffs' argument that the cases are related by pointing to an overlap in the issues in both cases. Moreover, that the VJRA changed the $10 fee limitation to a fee prohibition at the regional office stage is hardly a material change. And, of course, even if the VJRA were completely new to Judge Patel, the rest of 38 U.S.C., the 38 CFR Regulations, M-21-1 manual provisions, and other administrative rules remain largely the same. B. Omissions

Completely lost in Defendants' Opposition is the experience acquired by Judge Patel in presiding over the NARS case for over a decade, which included not only motions to dismiss, a motion for a preliminary injunction, a class certification motion, and a five-week trial, but also a long series of discovery motions and appeals from rulings by the U.S. Magistrate.
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The opposition also ignores many of the important overlaps between the cases, such as the extensive evidence received by Judge Patel regarding how the VA adjudication system operates. In fact, Defendants' quotes from the Complaint regarding the challenged provisions, policies, and procedures, see Def. Opp. at 2:26-3:18, cited as a point of differentiation, are actually points of similarity. In NARS, the procedural shortcomings of the VA adjudication system and abuses perpetrated on unrepresented veterans were advanced as reasons why veterans require the ability to retain counsel. In VCS, they serve the same purpose, as well as forming a basis for injunctive relief. The Findings of Fact and Conclusions of Law in NARS show the overlap in the body of laws, rules and regulations at issue in both cases. Compare NARS FF/CL ¶¶ 26-30 and NARS Complaint ¶¶ 2439 with VCS Complaint ¶¶ 30-31. C. Errors

Defendants' Opposition rests upon a series of factual and analytical errors, including: 1. "NARS began as a facial challenge to the [fee limitation statute] . . . ." Def.

Opp. at 2. In fact, it was both a facial and as-applied challenge: A present controversy exists between plaintiffs and defendants in that plaintiffs contend and defendants deny that 38 U.S.C. §§ 3404-3405, both on their face and as applied to plaintiffs, . . . unconstitutionally infringe upon plaintiffs' property and liberty rights protected by the Due Process Clause of the Fifth Amendment to the United States Constitution. NARS Complaint ¶ 54 (emphasis added). Defendants also ignore the fact that the original NARS complaint included PTSD claims and claimants, providing another point of factual overlap. See NARS Complaint ¶¶ 40, 45, 49. 2. The Plaintiffs in VCS challenge "provisions of a different law, the VJRA, as

applied to veterans with post-traumatic stress disorder . . . ." Def. Opp. at 2:22-23. This statement has multiple errors. Plaintiffs challenge the VJRA provisions "in conjunction with" the body of preexisting veterans law ­ not just the VJRA. VCS Complaint ¶ 29. Moreover, while the proposed class consists of veterans with PTSD claims, the "as-applied" label is Defendants' characterization, and nowhere appears in the Complaint. 3. Defendants lump together statutory changes with "procedures and practices," 2

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ignoring the fact that the latter are informal and cannot be "superseded" by VJRA statutory changes. Def. Opp. at 2:2-7. Even as to statutory provisions, the "Statutory Defects" alleged in VCS include long-standing statutes containing unfair procedures, such as the inability of claimants to obtain discovery. VCS Complaint ¶ 31c. As the VCS Complaint makes clear throughout, the VA continues to use many of the practices and procedures that the NARS Plaintiffs complained of, including, abuses of the VA's incentive compensation systems, compare VCS Complaint ¶¶ 227-34 with NARS FF/CL ¶ 191; premature denial of claims, compare VCS Complaint ¶ 228 with NARS FF/CL ¶¶ 191, 194, 196; the competency of lay service officers from service organizations, compare VCS Complaint ¶¶ 238-40, 244 with NARS FF/CL ¶¶ 216-43; internal abuses by VA adjudicators and shortcomings in internal control system, compare VCS Complaint ¶¶ 197-98 with NARS FF/CL ¶¶ 193-94; and the exertion by Central Office of improper influence upon claims decisions, compare VCS Complaint ¶ 32d with NARS FF/CL ¶¶ 184-88. 4. "[N]one of the plaintiffs and 3/10 of the defendants are the same or

substantially similar to defendants in NARS." Def. Opp. at 4:14-15. In fact, both plaintiffs are veterans organizations similar to those in NARS, three of the defendants are identical, and all of the defendants are similar, as they all are organizational components or responsible officials charged with administering benefits programs for veterans. III. CONCLUSION The VCS case is one of enormous public importance. It should be assigned to Judge Patel, who clearly has the most extensive experience with the VA's complex system. Dated: August 10, 2007 MORRISON & FOERSTER LLP

By:

/s/ Gordon P. Erspamer Gordon P. Erspamer Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE BY MAIL (Fed. R. Civ. Proc. rule 5(b)) I declare that I am employed with the law firm of Morrison & Foerster LLP, whose address is 101 Ygnacio Valley Road, Suite 450, P.O. Box 8130, Walnut Creek, California 94596-8130; I am not a party to the within cause; I am over the age of eighteen years and I am readily familiar with Morrison & Foerster's practice for collection and processing of correspondence for mailing with the United States Postal Service and know that in the ordinary course of Morrison & Foerster's business practice the document described below will be deposited with the United States Postal Service on the same date that it is placed at Morrison & Foerster with postage thereon fully prepaid for collection and mailing. I further declare that on the date hereof I served a copy of: REPLY IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED [PROPOSED] ORDER GRANTING PLAINTIFFS' ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED on the following by placing a true copy thereof enclosed in a sealed envelope addressed as follows for collection and mailing at Morrison & Foerster LLP, 101 Ygnacio Valley Road, Suite 450, P.O. Box 8130, Walnut Creek, California 94596-8130 , in accordance with Morrison & Foerster's ordinary business practices:

Matthew L. Larrabee Stephen M. Hankins Steven S. Kimball Heller Ehrman White & McAuliffe 333 Bush Street San Francisco, CA 94104-2878 Attorneys for National Association of Radiation Survivors William C. Knox-Morison Morison-Knox, Holden, Melendez & Prough, LLP 500 Ygnacio Valley Road, Suite 450 Walnut Creek, CA 94596 Attorney for Reason F. Warehime

Theodore C. Hirt Dennis G. Linder US Department of Justice Civil Division 901 E. Street NW Washington, DC 20530 Attorneys for Paul D. Ising, Harry N. Walters, Veterans Administration, and Edward J. Derwinski Thomas H. Peebles US Department of Justice Civil Division, Federal Programs Branch 901 E. Street, NW, Suite 1000 Washington, DC 20530 Attorney for Paul D. Ising, Harry N. Walters, Veterans Administration, and Edward J. Derwinski

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Stephen L. Schirle, AUSA William T. McGivern, Jr. Stuart M. Gerson US Attorney's Office 450 Golden Gate Avenue, Room 100 PO Box 36055 San Francisco, CA 94102 Attorneys for Paul D. Ising, Harry N. Walters, Veterans Administration, and Edward J. Derwinski I declare under penalty of perjury that the above is true and correct. Executed at Walnut Creek, California, this ____ day of ________.

Kathy Beaudoin (typed)

/s/ Kathy Beaudoin (signature)

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