Free Memorandum in Opposition - District Court of California - California

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JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JOSEPH P. RUSSONIELLO California Bar No. 44332 United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL BENSING D.C. Bar No. 334268 STEVEN Y. BRESSLER D.C. Bar No. 482492 KYLE R. FREENY California Bar No. 247857 Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-5108 Facsimile: (202) 616-8460 Email: [email protected] Attorneys for Defendants Hon. James B. Peake,1 the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Hon. Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Michael B. Mukasey, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) ) VETERANS UNITED FOR TRUTH, ) ) Plaintiffs, ) ) v. ) ) Hon. JAMES B. PEAKE, Secretary of ) Veterans Affairs, et al., ) ) Defendants. ) ____________________________________ )

No. C 07-3758-SC MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Date: February 22, 2008 Time: 10:00 a.m. Courtroom: 1

Hon. James B. Peake should be substituted for his predecessor, Acting Secretary Gordon Mansfield, as defendant in this action pursuant to Fed. R. Civ. P. 25(d)(1).
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TABLE OF CONTENTS PAGE(S) INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Statutory and Regulatory Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. C. D. II. The Veterans Health Care Eligibility Reform Act Of 1996.. . . . . . . . . . . . 3 The Veterans Programs Enhancement Act Of 1998. . . . . . . . . . . . . . . . . . 3 The Joshua Omvig Veterans Suicide Prevention Act. . . . . . . . . . . . . . . . . 4 The National Defense Authorization Act For Fiscal Year 2008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Factual Background: VA's Extensive Activities To Provide Mental Health Care To Veterans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. II. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Plaintiffs Are Not Likely To Succeed On The Merits Of Their Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Plaintiffs' Statutory Claims Lack Merit.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Plaintiffs' Section 706(1) Mandamus Claim Should Be Rejected Because The Agency Action In Question Is Committed To The Secretary's Broad Discretion. . . . . . . . . . . . 8 Plaintiffs' Section 706(1) Mandamus Claim Should Be Rejected Because The "Actions" In Question Are Not Discrete But, Rather, Programmatic In Nature.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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B.

Plaintiffs' Due Process Claim Lacks Merit. . . . . . . . . . . . . . . . . . . . . . . . 14 1. Plaintiffs Have Not Established That They Have A Constitutional Due Process-Protected Property Interest In Health Care Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Even If Plaintiffs Had A Constitutionally Protected Property Interest In Particular Medical Treatment, The Agency Provides Adequate Due Process Protections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.

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III. IV.

Plaintiffs Have Not Established They Will Suffer Irreparable Harm In The Absence Of A Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . 20 The Public Interest Favors Denial Of Plaintiffs' Motion.. . . . . . . . . . . . . . . . . . . 22

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)........................................................................................................... 9 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)..................................................................................................... 14, 16 Anderson v. White, 888 F.2d 985 (3d Cir. 1989)............................................................................................. 19 In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991). .......................................................................................... 12 Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)................................................................................................... 14, 15 Board of Trade of City of Chicago v. S.E.C., 883 F.2d 525 (7th Cir. 1989). .......................................................................................... 12 Chinnock v. Turnage, 995 F.2d 889 (9th Cir. 1993). .......................................................................................... 18 Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994). .......................................................................................... 19 Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980). .................................................................................. 15, 16 Eastern Paralyzed Veterans Ass'n, Inc. v. Secretary of Veterans Affairs, 257 F.3d at 1352 (Fed. Cir. 2001)......................................................................... 15, 16, 17 First Nat'l Bank of Albuquerque v. Albright, 208 U.S. 548 (1908).......................................................................................................... 22 Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992).............................................................................................................. 9 Gillette Co. v. Ed Pinaud, Inc., 178 F. Supp. 618 (S.D.N.Y. 1959).................................................................................... 21 -iii-

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Heckler v. Chaney, 470 U.S. 821 (1984)......................................................................................................... 10 Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000 (9th Cir. 1998). ........................................................................................ 10 Home Loan Bank Bd. v. Mallonee, 196 F.2d 336 (9th Cir. 1952). .......................................................................................... 22 Independence Mining Co. v. Babbitt, 105 F.3d 502 (9th Cir. 1997). ............................................................................................ 7 International Union, United Autoworkers v. Donovan, 746 F.2d 855 (D.C. Cir. 1984), cert. denied, 474 U.S. 825 (1985).................................. 11 Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221 (1986)........................................................................................................... 7 Johnson v. Robison, 415 U.S. 361 (1974)......................................................................................................... 22 Kansas Health Care Association, Inc. v. Kansas Department of Social Services, 31 F.3d 1536 (10th Cir. 1994). ........................................................................................ 21 Legal Services of Northern California, Inc. v. Arnett, 114 F. 3d 135 (9th Cir. 1997). ......................................................................................... 10 Lincoln v. Vigil, 508 U.S. 182 (1993)............................................................................................. 10, 11, 15 Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197 (9th Cir. 1980). .......................................................................................... 6 Luckett v. Jett, 966 F.2d 209 (6th Cir. 1992) , cert. denied, 507 U.S. 922 (1993).f................................. 16 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)......................................................................................................... 13

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Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984) .......................................................................................... 20 Matthews v. Eldridge, 424 U.S. 319 (1976).................................................................................................. passim Morrissey v. Brewer, 408 U.S. 471 (1972)......................................................................................................... 16 National Ass'n of Radiation Survivors v. Derwinski, 994 F.2d 583 (9th Cir. 1993)............................................................................................. 19 Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55 (2004)....................................................................................................... 7, 13 OPM v. Richmond, 496 U.S. 414 (1990)......................................................................................................... 13 Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374 (9th Cir. 1985). ........................................................................................ 21 Oregon Natural Resources Council v. Harrell, 52 F.3d 1499 (9th Cir. 1995). ...................................................................................... 7, 13 Parrish v. Brownlee, 335 F. Supp. 2d 661 (E.D.N.C. 2004).............................................................................. 22 Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005). .......................................................................................... 18 Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75 (4th Cir. 1989). ............................................................................................ 21 Rank v. Nimmo, 677 F.2d 692 (9th Cir. 1982). .......................................................................................... 10 Richardson v. Perales, 402 U.S. 389 (1971)......................................................................................................... 17 Rostker v. Goldberg, 453 U.S. 64-65 (1981). .................................................................................................... 22 Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003). ............................................................................................ 6 -v-

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Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003). ........................................................................................ 10 Taylor v. Westly, 488 F.3d 1197 (9th Cir. 2007). ........................................................................................ 20 Thongsamouth v. Schweiker, 711 F.2d 465 (1st Cir. 1983)............................................................................................... 9 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)......................................................................................................... 15 Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515 (1937)......................................................................................................... 22 Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985)......................................................................................................... 17

STATUTES, RULES AND REGULATIONS 5 U.S.C. § 701(a)(2)................................................................................................................... 9,13 5 U.S.C. § 706 ................................................................................................................... 7, 12, 13 28 U.S.C. § 1361............................................................................................................................ 7 38 U.S.C. § 511(a). ...................................................................................................................... 14 38 U.S.C. § 1701(a)(2)................................................................................................................... 8 38 U.S.C. § 1705(a). .......................................................................................................... 3, 17, 19 38 U.S.C. § 1706.......................................................................................................................... 19 38 U.S.C. § 1710(a). ............................................................................................................. passim 38 U.S.C. § 1720F.......................................................................................................................... 4 38 C.F.R. § 17.36(b)(6)................................................................................................................ 13 38 C.F.R. § 17.38. .................................................................................................................. 17, 19 38 C.F.R. § 19.29. ........................................................................................................................ 17 -vi-

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38 C.F.R. §19.30. .......................................................................................................................... 17 38 C.F.R. § 20.101(b). ................................................................................................................. 18 38 C.F.R. §20.201. ........................................................................................................................ 17 38 C.F.R. §20.202. ........................................................................................................................ 17 Fed. R. Civ. P. 25(d)(1).................................................................................................................. 1 Fed. R. Evid. 201(b)..................................................................................................................... 11 LEGISLATIVE MATERIALS 144 Cong. Rec. 10374, 10390........................................................................................................ 9 144 Cong Rec S12918, S12933. .................................................................................................... 9 H. Rep. No. 104-690 (1996). ................................................................................................ 3, 8, 17 H.R. 4986, Pub. L. No. 110- ---, 122 Stat. ---- (January 28, 2008)................................................ 4 H.R. Rep. No. 690, 104th Cong., 2d Sess. (1996). ...................................................................... 20 Pub. L. 104-262, codified at 38 U.S.C. § 1705 et. seq.................................................................... 3 Pub. L. 105-368, § 102, 112 Stat. 3315, 3321-22 (November 10, 1998), codified at 38 U.S.C. § 1710(a)(1)(D). ..................................................................................................... 3 Joshua Omvig Veterans Suicide Prevention Act, Pub. L. No. 110-110,121 Stat. 1031 (November 5, 2007). .......................................................................................... 2, 4, 22, 23 MISCELLANEOUS Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise (3d ed. 1994). ...................... 12

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INTRODUCTION Plaintiffs, two advocacy organizations, ask this Court to insert itself into the management of the U.S. Department of Veterans Affairs ("VA") with an extraordinary preliminary injunction that would encroach on the discretion delegated by Congress to the Secretary of Veterans Affairs in two ways not justified by the law on equity. First, plaintiffs seek to allocate funds that Congress has committed to VA's discretion via lump-sum appropriations. Second, plaintiffs seek to dictate the scope and level of medical care provided by VA although that decision, as well, is committed to the Secretary's discretion by statute. Plaintiffs rest their motion for emergency relief on selective citations and misinterpretations of the law, including their assertion that the Secretary has failed to spend funds earmarked by Congress. In fact, plaintiffs cite not a single appropriations act, let alone one that has been violated. Rather, plaintiffs rely on a Government Accountability Office ("GAO") report that analyzed the Secretary's discretionary spending of money drawn from lump-sum appropriations. Plaintiffs further claim that veterans who dispute VA doctors' expert medical judgments have no meaningful opportunity to be heard when, in fact, they may appeal clinical disputes; upon such appeal, they receive medical review and due process that comports with the Constitution. The Court need not determine the adequacy of the due process procedures provided, however, since plaintiffs do not have a due processprotected property interest in their health care benefits. Plaintiffs' contrary argument is, again, based on selective citations that ignore the statutory text and relevant legislative history. Against that background, it is not surprising that plaintiffs fail to clear their high hurdle to justify preliminary relief. Plaintiffs are not likely to succeed on the merits of their Administrative Procedure Act ("APA") claim for mandamus because they cannot show VA has failed to take a required, discrete action. Moreover, enforcement of the mandamus plaintiffs seek would improperly enmesh this Court in the facts of thousands of individual medical decisions. Plaintiffs are also not likely to succeed in their claim that veterans who disagree with the medical care they are offered have no due process at all because, again, they are afforded due process in VA's clinical appeals framework and, in any event, constitutional due process protections do not apply.
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Plaintiffs have also failed to establish that the injunction they seek will protect them from irreparable harm. Plaintiffs' claim of urgency requiring a preliminary injunction is belied at the outset by their own delay in seeking relief. Plaintiffs' delay aside, they have adduced no cognizable evidence but, instead, rely on hearsay and anonymous declarations that cannot be verified and, in any event, do not establish that an injunction would prevent otherwise irreparable harm. Moreover, VA is making great progress in addressing the mental health care needs of combat veterans through its own programs as well as implementation statutes enacted as recently as January 28, 2008, when the President signed the National Defense Authorization Act for Fiscal Year 2008 including several programs to help veterans, and November 2007, when the President signed the Joshua Omvig Veterans Suicide Prevention Act. As detailed below and in the attached declarations, each major allegation by plaintiffs regarding the scope, availability, and type of care is either wrong or based on data from earlier time periods that no longer reflects the current situation. This Court should not interfere with the political branches' design, oversight, and modification of VA programs. For that reason, the public interest also militates against entry of a preliminary injunction. For all of these reasons, the Court should deny plaintiffs' Motion for Preliminary Injunction.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

BACKGROUND2 Statutory and Regulatory Background A. The Veterans Health Care Eligibility Reform Act Of 1996

In section 104(a) of the Veterans Health Care Eligibility Reform Act of 1996 ("VHCERA"), Pub. L. 104-262, codified at 38 U.S.C. § 1705 et. seq., Congress directed the VA, among other things, to establish and operate a system of annual patient enrollment in order to manage the provision of hospital care and medical services under 38 U.S.C. § 1710(a). See 38 U.S.C. § 1705(a). VHCERA also provided that this system of annual patient enrollment was to be managed in accordance with a list of veteran priority groups that was set forth in the Act. Id. In VHCERA, Congress explicitly provides that VA's duty to furnish health care to qualifying veterans is limited in any fiscal year to the amount provided in advance in appropriations acts for such purposes. 38 U.S.C. § 1710(a). Thus, § 1710(a) was explicitly not intended to create any entitlement to health care. See H. REP. NO . 104-690 (1996) (§ 1710(a) "creates no . . . expectation" that veterans are entitled to health care thereunder). B. The Veterans Programs Enhancement Act Of 1998

In 1998, Congress amended VHCERA with the section 102 of the Veterans Programs Enhancement Act, Pub. L. 105-368, § 102, 112 Stat. 3315, 3321-22 (November 10, 1998), codified at 38 U.S.C. § 1710(e)(1)(D), to authorize VA to enroll veterans of future armed conflicts for medical services under VHCERA, 38 U.S.C. §§ 1705, 1710(a) & (e), for a period of two years following the veterans' separation from active duty and without regard to the serviceconnection of the illnesses for which such veterans seek treatment during those two years. The Plaintiffs' extraordinary motion to hide the identities of and certain other information attested to by their fact witnesses from the other parties in this action and their staff counsel is being briefed at the same time as plaintiffs' Motion for Preliminary Injunction. See Clerk's Notice of January 11, 2008 (Docket Entry No. 94, setting briefing schedule on plaintiffs' Motion for Protective Order, Docket Entry No. 56). Because the Court has, accordingly, not ruled on plaintiffs' motion for their witnesses to proceed anonymously, information from plaintiffs' declarations in support of their Motion for Preliminary Injunction has not been available to defendants to address in this response. The Court should, accordingly, not rely upon the untested, often hearsay testimony in these declarations which defendants are unable to investigate and to which they cannot respond.
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legislative history of § 1710(e)(1)(D) indicates Congress intended it to authorize, but not require, provision of particular medical care to veterans and that, like § 1710(a), it creates no new entitlement. See infra note 4. C. The Joshua Omvig Veterans Suicide Prevention Act

In November of last year, Congress addressed suicide rates among veterans with posttraumatic stress disorder (PTSD), when it enacted the Joshua Omvig Veterans Suicide Prevention Act, Pub. L. No. 110-110,121 Stat. 1031 (November 5, 2007), to be codified in part at 38 U.S.C. § 1720F. The Joshua Omvig Act directs the Secretary to "develop and carry out a comprehensive program designed to reduce the incidence of suicide among veterans" that includes, inter alia, appropriate staff training; mental health assessments and, where appropriate, counseling referrals; 24-hour availability of mental health care; outreach to veterans; and suicide prevention research. See id. The Act also authorizes, but does not require, the Secretary to establish a toll-free hotline staffed by mental health professionals for veterans to call and a peer counseling program. Id. D. The National Defense Authorization Act For Fiscal Year 2008

On January 28, 2008, the President signed into law Pub. L. No. 110- ---, 122 Stat. ----, H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008. The Act, inter alia, (1) extends the period for which returning combat veterans are made eligible for free medical care under 38 U.S.C. §§ 1710(e)(1)(D), (e)(3)(C), to five years, see H.R. 4986 § 1707; (2) requires reports on administrative separations of members of the Armed Forces due to personality disorder, id. § 597; (3) creates, for purposes of health benefits eligibility, a presumption that mental illness is service-connected where a veteran of the Persian Gulf War developed the mental illness within two years of discharge or release from active military service, id. § 1708(a); and (4) provides for comprehensive planning, research, and a pilot program to assist veterans and others with traumatic brain injury, id. §§ 1702, 1704, 1705. II. Factual Background: VA's Extensive Activities To Provide Mental Health Care To Veterans In 2004, the Veterans Health Administration ("VHA") developed a Comprehensive

27 Mental Health Strategic Plan to expand and improve mental health services. See Declaration of 28
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Antonette Zeiss, filed herewith as Exhibit 1, ¶ 5. As part of that plan, and not subject to any Congressional direction in an appropriations act, VA allocated money from lump-sum appropriations through the agency's Mental Health Initiative to be spent to improve the quality and capacity of VHA mental health services. Id.; Declaration of W. Paul Kearns III, filed herewith as Exhibit 2, ¶ 8. VA provides inpatient and/or outpatient mental health services in all 153 of its medical centers across the country. Zeiss Decl. ¶ 7. Each medical center's Emergency Department is directed to have mental health staff available at all times, 24 hours a day, to provide urgent care. Id. VA's mental health staff includes full and part time psychiatrists and psychologists as well as VA social workers, mental health nurses, counselors, rehabilitation specialists, and other clinicians who work to provide a full continuum of mental health services to veterans. Id. ¶ 8. VA has hired 3,784 new mental health professionals in the last two and a half years, bringing the total number of mental health professionals within VA to just under 17,000 well above the

staffing level in fiscal year 2000. Id. VA undertook this massive hiring effort with funds allocated internally by VA from its lump-sum appropriations to carry out the Mental Health Strategic Plan. Id. This hiring effort continues. Id. Each VA medical center is staffed with at least one specialist in PTSD, and veterans are routinely screened for PTSD at primary care clinics. Id. ¶ 9. VA has also expanded mental health services in its community based outpatient clinics, including by staffing those clinics with more mental health professionals. Id. ¶ 10. Although it is not feasible to staff full-time mental health professionals at every clinic since the demand for such services is sometimes too low, VA works to ensure that all veterans have access to needed mental health care by, for example, providing mental health professionals who travel among different clinics to provide care. Id. VA has also been expanding its use of telemental health: through streaming video, specialized mental health providers offer diagnoses and therapy to veterans in remote locations. Id. This reduces the travel burden on veterans in rural areas. Id. In June 2007, VHA adopted a policy that veterans who request or are referred for mental health services at a medical center or outpatient clinic are to be given a mental health triage
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evaluation within 24 hours. Id. ¶ 11 and Exhibit A thereto. If the veteran is determined to have an urgent need for care, such as a risk for suicide, he is to be treated immediately; otherwise, he is to be given a follow-up appointment within 14 days for a full diagnostic and treatment-planning evaluation, as well as initiation of treatment, if appropriate. Id. ¶ 11. Even before VA implemented this 14-day policy, the number of veterans waiting for appointments was on the decline. Id. ¶ 12. The number of veterans who are not able to be scheduled for an outpatient mental health appointment within 30 days has steadily declined over the last year, and is now less than 5% among OEF/OIF veterans seeking treatment at VA. Id. The population of veterans who receive care from VA have more suicide risk factors than the general population, and so suicide prevention is a major priority for VHA. Id. ¶ 19. Every VA medical center has on staff a a Suicide Prevention Coordinator to raise awareness of the risk of suicide, coordinate the medical center's response, and train other staff. Id. ¶ 20. In 2007, VA held its first annual Suicide Prevention Day to emphasize that suicide risk among veterans is a concern for everyone at the agency, not only its mental health professionals. Id. In July 2007, VA established a toll-free Suicide Hotline staffed by trained clinicians to provide emergency assistance to veterans urgently in need of mental health intervention and their families. Id. ¶ 21. Since July 2007, VA has successfully intervened in a number of crisis situations, sometimes by talking a veteran into coming into a medical center to meet the Suicide Prevention Coordinator, other times by alerting emergency personnel. Id. Since July, there have been more than 8,000 calls to the Suicide Hotline from veterans or family members, more than 1,500 referrals to Suicide Prevention Coordinators, and more than 380 rescues. Id. ARGUMENT I. Standard of Review The primary purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). In evaluating plaintiff's request for injunctive relief, this Court must determine whether plaintiff has shown either (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of
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hardships tips in its favor. See Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (en banc). Plaintiffs fail to satisfy these standards under any formulation. II. Plaintiffs Are Not Likely To Succeed On The Merits Of Their Claims. A. Plaintiffs' Statutory Claims Lack Merit.

Plaintiffs allege that the VA violated the Administrative Procedure Act, 5 U.S.C. § 706(1), which makes actionable an agency's failure to take action required by law. Their claim that VA is not meeting statutory requirements to provide certain care fails because it relies on selective citations taken out of context to justify a plainly erroneous interpretation of Congressional intent. As an initial matter, plaintiffs cannot seek emergency relief under § 706(1) because they have not sought relief under that provision anywhere in their lengthy Complaint. See generally Compl. Even if plaintiffs were to amend their pleading to include a § 706(1) claim, they cannot establish likelihood of success on such a claim as described in their pending motion for preliminary injunction. Section 706(1) provides for review similar to that of a claim for mandamus relief. See Independence Mining Co. v. Babbitt, 105 F.3d 502, 506-507 (9th Cir. 1997).3 Under the Mandamus Act or the APA, mandamus relief may be granted only when (1) the plaintiff's claim is clear and certain; (2) the duty is "ministerial and so plainly prescribed as to be free from doubt;" and (3) no other adequate remedy is available. See Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995) ("ONRC"). Thus, as the Supreme Court has held, "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 64 (2004) (emphasis in original). Plaintiffs cannot clear either hurdle of the SUWA test.

See also Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230 n.4 (1986) (a claim for mandamus under 28 U.S.C. § 1361 is "in essence" a claim for relief under 5 U.S.C. § 706).
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1.

Plaintiffs' Section 706(1) Mandamus Claim Should Be Rejected Because The Agency Action In Question Is Committed To The Secretary's Broad Discretion.

Plaintiffs claim that "Congress requires the Secretary of the VA to" take certain actions is based on misleadingly incomplete citations that seek to obscure the Secretary's significant discretion in carrying out his responsibilities and the narrow limitations on those responsibilities. Plaintiffs rely on 38 U.S.C. § 1710(a)(1), which states that "[t]he Secretary (subject to paragraph (4)) shall furnish hospital care and medical services which the Secretary determines to be needed" to certain veterans with service-connected disabilities. (Emphasis added; italicized portion omitted in plaintiffs' quotation at Pl. Mem. 8:5). The reference (omitted by plaintiffs) to "paragraph (4)" refers to 38 U.S.C. § 1710(a)(4) in which Congress expressly provided that "[t]he requirement in [§ 1710] paragraphs [a](1) and (2) that the Secretary furnish hospital care and medical services . . . shall be effective in any fiscal year only to the extent and in the amount provided in advance in appropriations Acts for such purposes." Thus, as the Federal Circuit has explained, the statute relied upon by plaintiffs "specifically and substantially limits VA's obligation to provide care. The scope of VA's mandate reaches only `to the extent and in the amount provided in advance in appropriations Acts for these purposes' [and] creates no such expectation [that veterans are entitled to care]." See H. REP. NO . 104-690 (1996), quoted in Eastern Paralyzed Veterans Ass'n, Inc. v. Secretary of Veterans Affairs, 257 F.3d 1352, 1362 (Fed. Cir. 2001) (bracketing in E. Paralyzed Vets' Ass'n.; emphasis supplied). As defendants explain below, plaintiffs have not identified a single appropriations act that they allege the Secretary has violated. Plaintiffs also rely on 38 U.S.C. § 1701(a)(2), which includes the same delegation of discretion to the Secretary (although, again, plaintiffs omit the pertinent language). See Pl. Mem. 8:6. That provision directs the Secretary to furnish care that he determines to be needed, subject to appropriations limitations, to certain other categories of veterans. 38 U.S.C. § 1710(a)(2). In 1998, Congress amended the statute with § 1710(e)(1)(D), identified by plaintiffs as "the twoyear statute," to make eligible for care under § 1710(a)(2) veterans who served in combat during a period of hostilities after November 11, 1998. Such veterans were made eligible for care of any
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illness under § 1710(a)(2)(F) without regard to the service-connection of the illness, see § 1710(e)(1)(D), for two years beginning on the date of their military discharge, id. § 1710(e)(3)(C) (recently extended to five years, see H.R. 4986, 110th Congress, § 1707, enacted January 28, 2008). Thus, because the two-year statute merely makes certain veterans eligible for care under § 1710(a)(2), the Secretary's wide discretion under that provision governs plaintiffs' claim under § 1710(e)(1)(D), as well. Cf. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 97 (1992) (statutory construction must account for the "structure" of the statute); Adams Fruit Co. v. Barrett, 494 U.S. 638, 645 (1990) (courts must "giv[e] effect to the meaning and placement of the words chosen by Congress" (emphasis supplied)).4

For this reason, as discussed further infra, defendants respectfully submit that the Court was mistaken in finding that "§ 1710(a)(4) does in fact create a property interest protected by the Due Process Clause" and that there is "no indication" to the contrary. Order Granting in Part and Denying in Part Defendants' Motion to Dismiss at 36, 37. Indeed, the legislative history of § 1710(e)(1)(D) establishes legislative intent to authorize, but not require, medical care for veterans within two years of separation after serving in an armed conflict. See H. REP. 105-833, "Activities of the Committee on Veterans Affairs for the 105th Congress" (December 9, 1998), at 26 (explaining that the House bill that led to enactment of § 1710(e)(1)(D), the "two-year statute," did not mandate VA provide any particular medical care but "[e]stablishe[d] authority" for VA to provide health care to veterans of future conflicts within two years after their separation from service; also explaining, in contrast, that other sections of the bill "[r]equire[d] VA" to take certain actions such as, e.g., establish a public advisory committee). See also 144 Cong. Rec. 10374, 10390 (Statement of Rep. Evans) ("This bill gives VA the tools to apply these lessons learned by allowing VA to treat veterans from a theater of combat for two years post-discharge"); id. 10390-91 (summary of the bill by Rep. Evans, then-ranking Democratic member of the House Veterans Affairs Committee, stating the pertinent section would "[e]stablish authority for VA to provide priority health care to treat illnesses that may be attributable to a veteran's service in combat during any period of war after the Persian Gulf War or during any other future period of hostilities . . ."); id. 10394 (statement of Rep. Stearns) ("This bill would . . . authorize VA, in advance, to treat veterans of future combat situations for illnesses which first manifest themselves within two years after service."); id. 10395 (statement of Rep. Jackson-Lee) ("This is a good bill that allows for treatment of these individuals for at least a 2-year period . . ."); 144 Cong Rec S12918, S12933 (statement of Sen. Rockefeller) (explaining the legislation "extends VA's current authority to provide treatment for veterans of future conflicts."). (Emphases added.) Cf. Thongsamouth v. Schweiker, 711 F.2d 465, 466 (1st Cir. 1983) (upholding limitation on medical benefits where it was "clear from the language of the Act as well as its legislative history that Congress intended to grant the Secretary discretionary authority to administer the various programs under the Act, and that, for budgetary and other reasons, the authority be broad and flexible").
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By providing that the VA provide under these statutes only medical care that the Secretary determines is needed, Congress committed the matter to the agency's discretion by law (and, therefore, foreclosed the judicial review plaintiffs seek under the APA, see 5 U.S.C. § 701(a)(2)). Agency action is committed to the agency's discretion by law when "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1984). "If no judicially manageable standard exists by which to judge the agency's action, meaningful judicial review is impossible and the courts are without jurisdiction to review that action." Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003) (internal quotation omitted); see also Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998). There are no meaningful standards by which a court could review the appropriateness of the Secretary's determination, in his discretion, of what care is needed. Accordingly, courts have interpreted language similar to that included in 38 U.S.C. § 1710(a) as granting discretion to agencies sufficient to preclude judicial review under the APA. See, e.g., Legal Services of Northern California, Inc. v. Arnett, 114 F. 3d 135, 140 (9th Cir. 1997) (noting that the statute's terms that legal services be provided to senior citizens "to the maximum extent feasible" in accord with their need left the court "ill-equipped" to determine how that could be accomplished); Rank v. Nimmo, 677 F.2d 692, 699-700 (9th Cir. 1982) (statute providing the administrator take action "at [his] option" unreviewable because it vested the "widest discretion possible" in the administrator); Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003) (regulation that authorizes an agency official to take an action for any reason the official "considers appropriate" leaves Court with "no law to apply"). See also Lincoln v. Vigil, 508 U.S. 182, 192-94 (1993) (holding that agency's decision to pursue a statutory goal through a particular children's health care program was committed to agency discretion by law). Indeed, the determination of how to best meet the Secretary's critical statutory outreach goals involves precisely the sort of analysis that the Supreme Court and the APA have left committed to agency discretion:

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a complex balancing of a number of factors which are peculiarly within [the agency's] expertise: whether its resources are best spent on one program or another; whether it is likely to succeed in fulfilling its statutory mandate; whether a particular program best fits the agency's overall policies; and, indeed, whether the agency has enough resources to fund a program at all. . . . [T]he agency is far better equipped than the courts to deal with the many variables involved[.] Lincoln, 508 U.S. 182, 193 (internal quotations, citations omitted), quoting Chaney, 470 U.S. at

5 831-32. After this complex policy analysis, the Secretary has determined how to best meet his 6 statutory obligation to provide to veterans health care that he determines is needed. 7 Nor are there standards by which this Court could judge the level of mental health 8 funding chosen by the Secretary. When, as here, funds are allocated from a lump-sum 9 appropriation, see Kearns Decl. ¶ 8, that allocation is committed to agency discretion. Lincoln, 10 508 U.S. 182, 192. "After all, the very point of a lump-sum appropriation is to give an agency 11 the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it 12 sees as the most effective or desirable way." Id.; see also International Union, United 13 Autoworkers v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 1984) ("A lump-sum appropriation 14 leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some 15 or all of the permissible objects as it sees fit."), cert. denied, 474 U.S. 825 (1985). 16 To evade this clear rule of law, plaintiffs make the wholly unsupported claim that "VA is 17 not spending the money that Congress has appropriated specifically to address veterans/ mental 18 health care needs." Pl. Mem. 3:18-19; see also, e.g., id. 12-13. Indeed, plaintiffs entire request 19 for emergency relief rests on this misstatement of law: plaintiffs "simply ask the Court to enjoin 20 defendants from refusing to spend money allocated by Congress." Id. 4 n.2. In fact, plaintiffs do 21 not point to a single such "allocation" or appropriations act of Congress alleged to be violated. 22 Rather, plaintiffs rely solely on a Government Accountability Office ("GAO") report. See, e.g., 23 id. 12-13 (citing GAO-07-66, "VA Health Care: Spending for Mental Health Strategic Plan 24 25 26 27 28 Defendants do not object to plaintiffs' request that the Court take judicial notice of the GAO report, although the Court should not, of course, accept plaintiffs' inaccurate characterization of the report's contents. By the same token, defendants do not object to judicial notice that certain purported facts have been reported in the media (although defendants do not
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Initiatives Was Substantially Less Than Planned" (November 2006),5 a document entirely

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unrelated to the legislative appropriations process. As indicated in its title, the GAO report tracked spending under the VA's own discretionary Mental Health Strategic Plan ("MHSP") initiatives. The Declaration of W. Paul Kearns III, the Chief Financial Officer of the Veterans Health Administration, establishes that "[t]his money . . . was not part of a specific appropriation by Congress to VA for mental health care. . . . This money was and is allocated internally at VA's discretion out of VHA's three lump-sum appropriations for spending on the Mental Health Initiative in support of the MHSP." Kearns Decl. ¶ 8. To the extent Congress has directed VA to meet certain mental health spending targets, VA is in compliance. See id. ¶¶ 10-12. Equally fatal to the request for preliminary relief is the fact that plaintiffs have proffered data that is out-of-date and which cannot justify injunctive relief for the future. Plaintiffs do not rely on funding levels in the current fiscal year; instead, they rely on a GAO report concerning the VA's discretionary spending on MHSP initiatives more than three years ago, in fiscal years 2004 and 2005. During the last fiscal year, 2007, VA exceeded its planned spending on these discretionary initiatives. Id. ¶ 7. This deficiency, alone, requires denial of emergency relief. Lacking relevant evidence, plaintiffs spend a great deal of effort to establish that providing mental health care to veterans is a matter of great import, and the Secretary certainly does not disagree. But the importance of plaintiffs' particular goals, when viewed in a vacuum, is irrelevant. As the D.C. Circuit held in a case concerning FDA's review of generic drugs: [T]he impact of the FDA's sluggish pace on the public health is effectively irrelevant in light of our analysis of . . . the effect of relief on competing agency priorities. Assuming constant resources for the . . . program, a judicial order putting [plaintiff] at the head of the queue simply moves all others back one space and produces no net gain. Agency officials not working on [plaintiffs'] matters presumably have not just been twiddling their thumbs. Perhaps Congress should earmark more funds specifically to the generic drug program, but that is a problem for the political branches to work out. In re Barr Laboratories, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991) (internal punctuation, citation omitted); see also KENNETH CULP DAVIS & RICHARD J. PIERCE , JR., ADMINISTRATIVE LAW TREATISE § 12.3, at 225 (3d ed.1994) (cautioning that mandamus in § 706(1) actions may

concede their relevance or accuracy), but they do object to judicial notice or consideration of the unverified opinions and characterization contained therein. The same caveat applies to the House of Representatives Democratic staff report submitted by plaintiffs. FED . R. EVID . 201(b).
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improperly "confer on the private parties who are potential petitioners the discretion to determine the agency's priorities and its allocation of resources . . ."). There is, accordingly, no basis for an injunction requiring VA to spend money in the manner contemplated by plaintiffs. See Board of Trade of City of Chicago v. S.E.C., 883 F.2d 525, 531 (7th Cir. 1989) ("Judges could make allocative decisions only by taking over the job of planning the agency's entire agenda, something neither authorized by statute nor part of their constitutional role."). Indeed, since plaintiffs have identified no actual appropriations acts that even they contend VA is violating, any such injunction would itself violate the Appropriations Clause of the Constitution. See U.S. CONST . Art. I, § 9, C1. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . ."); OPM v. Richmond, 496 U.S. 414, 424 (1990) (construing Appropriations Clause). Judicial intervention under § 706(1) is warranted only "`[w]hen agency recalcitrance is in the face of clear statutory duty or is of such a magnitude that it amounts to an abdication of statutory responsibility."' ONRC, 150 F.3d at 1137 (citations omitted). Plaintiff has identified no such clear and unmistakable duty, and so this Court should decline plaintiffs' invitation to invade the Secretary's congressionally-vested discretion by micromanaging either the health care that he determines to be needed by veterans or his allocation of resources. Cf. 5 U.S.C. § 701(a)(2) (no APA review of actions "committed to agency discretion by law") 2. Plaintiffs' Section 706(1) Mandamus Claim Should Be Rejected Because The "Actions" In Question Are Not Discrete But, Rather, Programmatic In Nature.

As the Supreme Court has held, plaintiffs simply "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular `agency action' that causes it harm." SUWA, 542 U.S. at 64, quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990) (emphasis in original). Therefore, as noted supra, any action plaintiffs seek to compel under the APA mandamus provision must be a discrete action. Id. at 62.

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Plaintiffs have not identified a discrete action they wish to compel. Rather, they ask this Court to issue a broad order enjoining the Secretary from, in their words: 1. Failing or refusing to treat any veteran seeking medical care within two years of discharge from service to the full extent of Congressional appropriations, as required by 38 C.F.R. § 17.36(b)(6) (the "Two-Year Statute" [sic]); [and] 2. Failing or refusing to provide immediate screening and mental health care to any veteran who is eligible for medical care under the Two-Year Statute or is otherwise eligible for VA medical care and seeks medical treatment at any VA facility and who self-reports suicidal intentions or where a VA physician or other medical professional concludes that the veteran has a significant risk of suicide. See Plaintiffs' Proposed Order on Motion for Preliminary Injunction (Docket Entry No. 70) at 2. Referring to "any veteran" does not refer to a discrete action; it arguably refers to a collection of dozens, hundreds or thousands of such actions, but plaintiff cannot succeed on the merits of such a cluster of claims in this Court, either. The flaw of plaintiffs' APA mandamus claim is drawn into stark relief upon consideration of how this Court would seek to enforce the order plaintiffs request. As noted supra, just prior to the filing of the Complaint in this action, it became VA policy to provide the immediate mental health screening that plaintiffs seek. To find the agency out of compliance would require this Court to do what Congress has forbidden and, indeed, what this Court has held it cannot and will not do: "this Court will not be forced to comb through the adjudication process of individual claims in search of some constitutional violation that causes delays." See Opinion Granting in Part and Denying in Part Defendants' Motion to Dismiss (Docket Entry No. 93) at 24; cf. id. at 28 (holding plaintiffs cannot bring an as-applied challenge to veterans' benefits legislation in this Court); see also 38 U.S.C. § 511(a); Zuspann v. Brown, 864 F. Supp. 17, 22 (W.D. Tex. 1994) (such claims involve "the very type of case[s] that would enmesh the courts in expensive, time-consuming litigation (involving a battle of experts) that § 511's judicial bar was constructed to avoid."), aff'd, 60 F.3d 1156 (5th Cir. 1995), cert. denied, 516 U.S. 1111 (1996). B. Plaintiffs' Due Process Claim Lacks Merit.

Plaintiffs also appear to rest their motion for preliminary injunction on a claim that the VA is violating unnamed veterans' due process rights because "there are essentially no available procedures for veterans to seek relief from denial of medical care." Pl. Mem. 1:22-23. Plaintiffs
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are unlikely to succeed on the merits of such a claim both because plaintiffs have not identified a property interest that is protected by constitutional due process and because, regardless, the agency's procedures in place would satisfy due process protections if they applied. 1. Plaintiffs Have Not Established That They Have A Constitutional Due Process-Protected Property Interest In Health Care Benefits.

"The first inquiry in every due process challenge is whether the plaintiff has been 6 deprived of a protected interest in `property' or `liberty.' Only after finding the deprivation of a 7 protected interest do we look to see if the [government]'s procedures comport with due process." 8 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citations omitted). "[T]he 9 range of interests protected by procedural due process is not infinite." Board of Regents of State 10 Colleges v. Roth, 408 U.S. 564, 570 (1972). To establish a property interest, plaintiffs must 11 demonstrate "a legitimate claim of entitlement," rather than a mere "abstract need or desire," or a 12 "unilateral expectation." Id., 408 U.S. at 577. A legitimate claim of entitlement to a property 13 interest comes not from the Constitution, but from "existing rules or understandings that stem 14 from an independent source such as state law rules or understandings that secure certain 15 benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577. Thus, 16 due process protections are not triggered unless a plaintiff can demonstrate a claim of 17 entitlement. Plaintiffs cannot do so here. 18 In their attempt to demonstrate entitlement, plaintiffs rely exclusively on a VA medical 19 care statute enacted under the Veterans Health Care Eligibility Reform Act of 1996, 38 U.S.C. 20 § 1710(a), and related provisions of law that make veterans eligible for care under § 1710(a) (see, 21 e.g., § 1710(e)(1)(D)) or that describes the care available under § 1710(a) (see, e.g., 22 § 1706(b)(1)). Section 1710(a) plainly and explicitly does not provide for an entitlement to any 23 particular medical care as plaintiffs argue, however, nor was it intended to 24 veterans' eligibility for medical care, but it does not create an entitlement to any particular 25 medical service. See E. Paralyzed Veterans, 257 F.3d at 1362. The Secretary is vested with wide 26 discretion to determine when care is necessary, see 38 U.S.C. § 1710(a), and how best to allocate 27 funds in service of the agency's statutory mandates, see id. § 1710(a)(4); Lincoln, 508 U.S. at 28
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192 ("the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way."). Thus, VA provision of particular health benefits "depends on an affirmative act of discretion by the granting official." See Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). Accordingly, § 1710 creates no property interest protected by the Due Process Clause. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) ("a benefit is not a protected entitlement if government officials may grant or deny it in their discretion."); Roth, 408 U.S. at 577. See also supra note 4 (legislative history establishes that Congress did not intend to create any entitlement to particular medical care in § 1710(e)(1)(D)). The Ninth Circuit's holding in Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980), relied upon by plaintiffs (Pl. Mem. 11:2-3), is not to the contrary. In Devine, veterans challenged termination of their educational benefits, which were provided under a statutory scheme not at issue here. The Court of Appeals held that the plaintiffs, "if `eligible veterans' as defined by [the veterans' educational benefit statute], and if enrolled and taking the prescribed units of approved courses at an educational institution meeting the requirements of [the statute], ha[ve] a statutory entitlement to receipt of an educational assistance allowance." Id. at 1086. Thus, the Devine plaintiffs had to meet the statutory requirements before they were vested with a protected property interest. The plaintiffs' "property interest in this case, however, is fundamentally different." American Mfrs. Mut. Ins. Co., 526 U.S. at 60. Under § 1710, eligible veterans are to be provided with only that medical care which the Secretary determines is needed, and only to the extent funds (which the Secretary has discretion to allocate from lump-sum appropriations) are available. This statute, as Congress intended, thus provides no expectation of or property interest in particular medical care. See E. Paralyzed Veterans' Ass'n., 257 F.3d at 1362 (construing § 1710(a) and quoting H. REP. NO . 104-690). 2. Even If Plaintiffs Had A Constitutionally Protected Property Interest In Particular Medical Treatment, The Agency Provides Adequate Due Process Protections.

Plaintiffs have not placed at issue the agency's formal appeal process for veterans who
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may challenge their eligibility for care; rather, they argue there are no procedures in place for any indisputably-eligible veterans to challenge VA medical professionals' decisions on what care is appropriate. Plaintiffs are mistaken and, indeed, the available procedures provide adequate and appropriate due process. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To determine the procedural safeguards that are required in a particular circumstance, courts consider three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Even assuming arguendo the Mathews test applies, plaintiffs "bear the burden of making `the very difficult factual showing necessary' to invalidate administrative procedures on the basis of the [Mathews] three-prong test." See Luckett v. Jett, 966 F.2d 209, 215 (6th Cir. 1992) (quoting Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 330 (1985)), cert. denied, 507 U.S. 922 (1993). Turning to the first Mathews prong, the interest of plaintiffs' members that will be affected by the agency's action is their claimed right to receive particular healthcare services from VA above those that the Secretary determines to be needed under the statute, 38 U.S.C. § 1710(a). For many veterans, eligibility for health care services is not based upon any financial need determination. 38 U.S.C. § 1705. In addition, the type of care provided by VA is available through other public or private providers. See Mathews, 424 U.S. at 341 (the "degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decisionmaking process."). Moreover, legislative history indicates that Congress did not intend to create any entitlement to these health services and expressly limited the provision of services to the amounts available in appropriations. 38 U.S.C. § 1710; H. REP. NO . 104-690, at 4 (1996) (Congress crafted § 1710 to ensure that "medical judgment rather than legal criteria will determine when care will be provided and the level at which care will be furnished."); E. Paralyzed Veterans' Ass'n., 257 F.3d at 1362, quoting
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H. REP. NO . 104-690 (1996) (§ 1710(a) "specifically and substantially limits VA's obligation to provide care. The scope of VA's mandate reaches only `to the extent and in the amount provided in advance in appropriations Acts for these purposes' [and] creates no such expectation [that veterans are entitled to care]."); supra note 4. Cf. 38 C.F.R. § 17.38 (regulation providing that care is to be provided to veterans only if medical professionals determine it to be appropriate). Turning to the second Mathews factor, the risk of erroneous deprivation of this interest is low. Mathews, 424 U.S. at 343-44 (recognizing " `the reliability and probative worth of written medical reports,' " [and] emphasizing that while there may be "professional disagreement with the medical conclusions" the "specter of questionable credibility and veracity is not present' ") (citing Richardson v. Perales, 402 U.S. 389, 405 (1971)). An eligible6 veteran who disagrees with a clinical decision can pursue the matter, first, by taking the dispute to his treatment team of medical professionals. See Declaration of Tony A. Guagliardo, filed herewith as Exhibit 3, ¶¶ 10-11. If they are unable to resolve the dispute, the VA facility director would make the final decision for the facility, with written notice to the veteran. Id. ¶¶ 11-12. Once a veteran is given written notice of a facility director's decision about a clinical dispute, the veteran has the option of appealing the decision to Director of the Veterans Integrated Service Network (VISN) that oversees the facility. The facility director must notify the veteran of this option in writing. A uniform clinical appeals process at the VISN level was initiated in 2001 as a means of standardizing the handling of clinical disputes th