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

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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. I. INTRODUCTION Veterans for Common Sense, et al. v. Nicholson, et al., No. C-07-3758 (SC), filed in the Northern District of California on July 23, 2007, arises out of the same complex and unfair set of statutes, procedures and practices used by the United States Department of Veterans Affairs ("VA") to process benefits and care to disabled veterans, as was previously challenged in this district in National Association of Radiation Survivors, et al. v. Walters ("NARS"), No. C-83-1861 (MHP). The VA is currently failing to meet our nation's legal and moral obligations to provide appropriate support and care for the hundreds of thousands of veterans with Post-Traumatic Stress Disorder ("PTSD") who have fought in Iraq and Afghanistan. As alleged in detail in the Veterans for Common Sense ("VCS") complaint, the VA's archaic systems for delivering benefits and care to veterans have largely collapsed with the unprecedented number of service-members suffering from this mental disorder. Mired in a backlog of over 600,000 claims, with waiting times that often exceed ten years, Case No. C-83-1861-MHP

ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (CIVIL L.R. 3-12, 7-11) (Class Action)

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seriously injured veterans face insurmountable obstacles to receive the help and care they urgently need and are entitled to under the law. The ultimate result is the wholesale violation of veterans' constitutional rights to due process, to petition for redress of grievances, and to have meaningful access to the courts. The VCS plaintiffs challenge, in particular, the constitutionality of several provisions of the Veterans Judicial Review Act of 1988 ("VJRA"), in conjunction with related, pre-existing statutes, and a pattern of illegal policies and practices of the VA. Among the challenged provisions of the VJRA and other federal statutes are: (1) restrictions on veterans' procedural rights, such as the inability to obtain discovery to support claims for service-connected death or disability compensation ("SCDDC"),1 the inability to compel the attendance of VA employees to testify as witnesses at hearings, and the inability to obtain expedited relief in urgent cases (e.g., imminent suicide threats); (2) the absence of any mechanism to enforce judicial decisions or compel the VA's agency of original jurisdiction (regional offices) to comply with the rule of law; and (3) the attorney's fee prohibition, which prevents veterans from compensating counsel to represent them in agency proceedings, and the related provision for criminal penalties for attorneys who violate the fee prohibition. The challenged VA policies and procedures include: (1) protracted delays in the adjudication of SCDDC claims and the provision of medical care to claimants and recipients; (2) the premature denial of SCDDC claims before required initial claim development has been completed; and (3) the exertion by VA officials in Washington, D.C. of pressure and influence upon the adjudication of SCDDC claims by VA regional offices. The VCS case is substantially similar, in multiple respects, to the NARS case, which was a class action litigated by one of the VCS plaintiffs' lead attorneys, Gordon Erspamer of Morrison & Foerster, before Judge Marilyn Hall Patel. The NARS case also involved the failure of the VA to provide for wounded veterans. The NARS plaintiffs specifically challenged two of the statutory

The term "service-connected" means that the disability is a result of a disease or injury incurred through, or aggravated during, active military service.

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provisions at issue in the VCS case: the attorney's fee limitation and the related criminal penalties.2 In the original NARS complaint, the plaintiffs argued that the fee limitation was unconstitutional both on its face, and as applied to veterans with SCDDC claims based on PTSD or exposure to Agent Orange and/or ionizing radiation, because it deprived them of their Fifth Amendment rights to procedural due process and their First Amendment rights to petition for redress of grievances and to associate freely. After remand from the Supreme Court, the NARS plaintiffs narrowed the case to include only as applied claims based on exposure to ionizing radiation.3 Although the NARS plaintiffs challenged fewer statutory provisions and practices than the plaintiffs in the VCS case, the evidence necessary to prove their claims is substantially similar to that which will be presented in VCS, et al. v. Nicholson. In addition, the parties are substantially the same, as are many of the factual and legal issues. Moreover, given the great complexity of VA statutes, regulations, procedures, and systems, it would be an unduly burdensome duplication of labor and judicial resources for a different judge to adjudicate these issues. The VCS plaintiffs therefore request, for the reasons set forth below, that their action be deemed related to the NARS case and that it be assigned to Judge Marilyn Hall Patel. II. OVERVIEW OF THE VCS CASE Long before the U.S. military became involved in Operation Enduring Freedom ("OEF") and Operation Iraqi Freedom ("OIF"),4 Congress identified serious and longstanding problems with the When the NARS case was brought, the attorney's fee limitation, codified at 38 U.S.C. §§ 3404-05, prohibited veterans from paying attorneys more than $10 from their own funds to represent them concerning VA service-connected death and disability compensation claims. Post-trial statutory amendments, codified in the VJRA and considered by the NARS court in post-trial briefing, provide that a fee may be paid to attorneys only after an appeal has been initiated by the filing of a Notice of Disagreement ("NOD"). Thus, the fee limitation at issue in VCS, which is codified at 38 U.S.C. §§ 5904-05, still leaves veterans unrepresented at the critical regional office stage, which is when the factual record for a veteran's claim is developed. The VCS case challenges the attorney's fee limitation and related criminal penalties, among other issues, as applied to veterans with PTSD, and is therefore not precluded by the adverse appellate decision in NARS. See National Ass'n of Radiation Survivors, et al. v. Walters, 994 F.2d 583 (9th Cir. 1992), cert denied, 510 U.S. 1023 (1993). While the class members in VCS suffer from a different type of service-connected disability than the class members in NARS, the evidence required to challenge the current attorney's fee limitation will be substantially the same, as explained in detail below. See infra, at II.A.
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OEF and OIF are the official titles for the wars in Afghanistan and Iraq, respectively. 3

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VA's claims process that affect the ability of veterans to obtain access to disability benefits and health care, although they have a statutory right to such benefits and care. The huge influx of OEF/OIF veterans into the VA's claims process has aggravated the previously identified problems, and led to a virtual meltdown in the VA's ability to provide appropriate health care and benefits for the troops who have been casualties of the current wars. For years, the VA's claims process has been plagued by a large backlog of claims (many going back to the Vietnam era), lengthy processing times for initial claims, high error rates in claims processing, and inconsistency across regional offices. With the surge in new claims from about 579,000 to about 806,000 over the last six years, the VA is experiencing record backlogs at all levels, resulting in delays of up to fifteen years for a claim to be fully adjudicated. By contrast, the private sector health care industry processes thirty billion claims annually at an average of approximately ninety days per claim, including the time required for resolution of disputed claims. Among those troops who have suffered the most due to the disintegration of the VA's claims system are those with PTSD ­ a psychiatric disorder that can develop in a person who experiences, witnesses, or is confronted with a traumatic event, often an event that is life-threatening. The Iraq and Afghanistan wars are resulting in an extraordinary number of veterans suffering from this mental disorder. Some of the reasons why PTSD is so widespread among returning troops include: multiple rotations into combat, the absence of battle lines, the moral ambiguity of killing combatants dressed as civilians, and the increased use of National Guard and Reserve troops. While precise statistics on the prevalence of PTSD in OEF/OIF veterans are not available, recent studies and reports suggest that at least 30% of returning veterans is experiencing PTSD. The prevalence of PTSD is even greater for female veterans (who may have been sexually assaulted during military service) and members of the National Guard and Reserves (who typically receive less training and preparation for deployment than active duty troops). For veterans with PTSD, the results of the extraordinary delays in the VA's claims process can be catastrophic. Symptoms of PTSD include intense anxiety, persistent nightmares, depression, uncontrollable anger, and difficulties coping with work, family, and social relationships. Delays in treatment of PTSD can lead to addiction, homelessness, anti-social behavior, or suicide.
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Like the claims processing system, the VA's health care system has also collapsed with the drastic increase in demand for services, particularly in the area of mental health, leaving the promise of treatment for wounded soldiers a hollow one. Veterans tell horror stories not only of having to wait weeks and sometimes months for PTSD treatment, but also of insufficient and overworked staff, and the absence of any mental health care in many rural areas. Frances Murphy, the Under-Secretary for Health Policy Coordination at the VA, has conceded that many VA facilities do not provide any mental health care or maintain long waiting lists that render the care inaccessible. A number of veterans have committed suicide shortly after having been turned away from VA medical facilities either because they were told they were ineligible for treatment or because the wait was too long. In addition to the long delays for benefits and care, there are a number of other VA policies and practices that work together to unfairly deny veterans with service-connected disabilities the support and care they need. For example, the VA's incentive compensation system financially rewards employees for prematurely denying claims without completing the required factual development steps. In addition, the VA's bureaucracy has exerted pressure on adjudicators in the VA's regional offices to deny valid claims or deliberately underrate the severity of disabilities in an effort to save money. There is also a strong financial motivation to delay the processing of claims because if a veteran dies while a disability claim is pending, his or her survivors and estate often must forfeit most of the accrued benefits. Moreover, numerous veterans suffering from PTSD are being deprived of care because they were coaxed by a military doctor to accept a "personality disorder" discharge from the military, not knowing such a discharge would later render them ineligible for benefits and treatment because "personality disorder" is considered a "pre-existing condition." The VJRA, in conjunction with other federal statutes, has enabled these unfair policies and practices of the VA to flourish because it provides no meaningful remedy for veterans to challenge the VA's illegal actions. Veterans have limited procedural rights in pursuing benefits claims (e.g., they are unable to initiate discovery, compel the attendance of VA employees as witnesses at hearings, obtain injunctive or declaratory relief, or request expedited relief in urgent cases). They are deprived of counsel at the critical regional office stage where the record for their claim is developed and the vast majority of cases are resolved. There is also no class action procedure for veterans to
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challenge systemic policies or procedures. More importantly, there is no mechanism for the VA to enforce judicial decisions or require the regional offices to obey or comply with the rule of law. At a time when service members are in harm's way in both Iraq and Afghanistan, veterans have been exposed to a system-wide pattern of abusive and discriminatory policies and practices, including some of the same practices revealed in the NARS discovery. Unless systemic and drastic measures are instituted immediately, the costs to veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, and crushing burdens on the health care delivery system and other social services in our communities. III. THE VCS CASE AND THE NARS CASE ARE RELATED A. The Actions Contain Substantially the Same Parties, Property, Transaction, or Event

Many of the parties in the VCS case are substantially the same as those in the NARS case. Three of the defendants in VCS were defendants in NARS: the Veterans Administration (now called the Department of Veterans Affairs); the chief official of the VA (formerly known as the Administrator and now called the Secretary); and the Attorney General of the United States.5 The organizational plaintiffs in VCS are very similar to the lead plaintiff group in NARS, the National Association of Radiation Survivors and Swords to Plowshares Veterans Rights Organization (original filing only), in that they are non-profit organizations, whose members include recipients and potential claimants for SCDC, dedicated to protecting the interests of veterans. Moreover, both actions were brought by the plaintiffs on behalf of all other veterans similarly situated who have applied for or receive SCDDC compensation. Both cases also involve precisely the same property interest; namely, the Fifth Amendment property interest of applicants and recipients to SCDDC benefits.

The Attorney General was added as a defendant in the second amended complaint in NARS. See NARS Second Amended Complaint ¶ 39.

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Finally, both cases challenge federal statutory provisions that limit veterans from paying an attorney to represent them throughout VA proceedings and subject attorneys who violate the provisions to criminal penalties. See 38 U.S.C. §§ 5904-05. In order to prove that the current incarnation of the attorney's fee prohibition violates the constitutional rights of veterans, the VCS plaintiffs will need to present the same types of evidence presented in NARS, regarding: (a) the way the claims process functions and whether it tends to be adversarial; (b) the extent to which VA employees or service organization representatives are able to aid veterans in gathering supporting materials and presenting their claims; (c) the special difficulties posed by complex claims, such as those caused by exposure to nuclear radiation or psychological stressors; (d) the way in which the lack of an attorney renders veterans unable to present their claims adequately; and (e) the hardship imposed on veterans by the attorney's fee limitation. The VCS plaintiffs will also have to present statistical evidence regarding the success rates of various types of SCDDC claims before the several levels of the VA, as did the plaintiffs in NARS. See NARS v. Derwinski, 782 F. Supp. 1392, 13961407 (summarizing trial evidence). Although the VCS case challenges several additional statutory provisions, policies, and practices of the VA, in addition to the attorney's fee prohibition, there is substantial overlap in the factual and legal claims in both cases, as well as in the evidence necessary to prove those claims. For example, both cases involve factual claims that: (a) VA claimants have limited procedural rights, such as no right to compel the attendance of government witnesses and no right to subpoena documents to obtain material in support of benefit claims, compare NARS Complaint ¶ 32 with VCS Complaint ¶¶ 30, 201-02; (b) the vast majority of VA claims initially denied by regional offices are withdrawn or abandoned before exhaustion of the appeals process, compare NARS Complaint ¶¶ 34, 36 with VCS Complaint ¶¶ 240-43; (c) a high percentage of Board of Veterans Appeals ("BVA") decisions involve remands for development of further evidence, and it is quite common for a claim to be remanded multiple times, compare NARS Complaint ¶ 37 with VCS Complaint ¶¶ 161-63; (d) the VA does not assist claimants in developing facts supporting SCDDC claims or even attempt a search for information, witnesses, or documents that might support such claims, compare NARS Complaint ¶¶ 42 with VCS Complaint ¶¶ 228-233; and (e) decisions of the Court of Appeals for Veterans Claims
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("CAVC") are not followed as precedent by the VA regional offices or the BVA, compare NARS Complaint ¶¶ 43 with VCS Complaint ¶¶ 139-141. In addition, the legal claims in the two cases are virtually the same. Both cases allege violations of veterans' Fifth Amendment right to due process and First Amendment right to petition for redress of grievances. In order to determine what process is due, both cases require application of the three-factor test set forth in Matthews v. Eldridge, 424 U.S. 319, 335 (1976). To adjudicate the First Amendment claims, both cases require consideration of whether the restrictions on meaningful access to the VA and courts serve substantial government interests, and are narrowly drawn to serve those interests. See United Mine Workers v. Illinois Bar Ass'n, 389 U.S. 217, 222-23, 225 (1967); Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 7-8 (1964). Lastly, both cases seek declaratory and injunctive relief, and neither case seeks to adjudicate individual benefits claims. In order to prove the above factual and legal claims, VCS, like NARS, will involve extensive evidence regarding: (a) the way the VA claims adjudication process functions, from the regional office level to the Board of Veterans Appeals to the Court of Appeals for Veterans Claims, and the process for challenging decisions at each of those levels; (b) how the adjudication process fails to safeguard the interests of claimants; and (c) how the VA fails to follow applicable statutes and regulations. See NARS v. Derwinski, 782 F. Supp. 1392, 1396-97, 1402-06 (N.D. Cal. 1993) (summarizing trial evidence). Thus, while the VCS case is broader than the NARS case in a number of respects, the parties, property right, factual issues, legal claims, and evidence are substantially the same. B. There Will be an Unnecessary and Unduly Burdensome Duplication of Labor if the Cases Are Conducted before Different Judges

As Judge Patel herself acknowledged in NARS, VA rules, regulations, and procedures concerning SCDDC are set forth in multiple sources and are intricate and extensive, comprising many thousands of pages. NARS, 782 F. Supp. 1392, 1396 (N.D. Ca. 1992) ("Veterans' law encompasses an extensive body of statutes, regulations and other materials . . . SCDD[C] claims are governed by regulations codified in the Code of Federal Regulations; a body of VA General Counsel opinions and Board of Veterans' Appeals (`BVA') decisions; VA circulars; and adjudication and program
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manuals. These materials interface with each other and form a complex web of governing authority.") (internal citations omitted). Each of the sources contains complicated rules and procedures concerning available benefits, claims development, eligibility, ratings, computation, elections, presumptions, severance, fraud, forfeitures, recoupment, appeals, and a host of other subjects. Of all the judges in the Northern District of California, Judge Patel is in the best position to make sense of this complex body of law because of her extensive experience with it in NARS. In the NARS case, Judge Patel authored four decisions (including a trial decision),6 totaling eighty pages in length, in which she addressed many of the factual and legal issues that will arise in VCS. She also heard and evaluated evidence regarding many of the present issues during the two-month bench trial. For any other judge to have to learn what Judge Patel has already mastered over the course of a decade of litigation about the complex system of VA benefits and care for people with serviceconnected disabilities would be a gross waste of time and judicial resources. Plaintiffs therefore ask that the VCS case be deemed related to the NARS case and assigned to Judge Patel. Dated: July 24, 2007 MORRISON & FOERSTER LLP

By:

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

They were actually two trial decisions, an original and an amended decision. Because the two trial decisions are almost identical, they are treated as one decision here.

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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: ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (CIVIL L.R. 3-12) 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 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 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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I declare under penalty of perjury that the above is true and correct. Executed at Walnut Creek, California, this 24th day of July 2007.

Kathy Beaudoin (typed)

/s/ Kathy Beaudoin (signature)

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