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UPDATE: VA "CLASS-ACTION" LAWSUIT NOT A CLASS ACTION
AT ALL -- The case was initially filed last July
as a class action
but the plaintiffs decided not to seek class
certification.
What many think is a class-action lawsuit against
the VA, really isn't. Even some members of the press are still
calling it a class-action.
We have two stories to explain...the first with a
brief explanation...the second going into greater detail.
For background on this lawsuit (with
backlinks)...click here...
http://www.vawatchdog.org/08/nf08/nfAPR08/nf042108-1.htm
The official web site for this lawsuit is here...
http://www.veteransptsdclassaction.org/index.html
First story here...
http://www.law.com/jsp/article.jsp?id=1208774509337
Story below:
-------------------------
MoFo Fights for Wounded Vets in Landmark Benefits
Case
The firm is pro bono co-counsel with Disability
Rights Advocates in a suit against the Department of Veterans Affairs
Brian Baxter
The American Lawyer
Soldiers returning from Iraq and Afghanistan who claim the Department of
Veterans Affairs hasn't provided the services they need got their day in
court Monday, when a bench trial before U.S. District Court Judge Samuel
Conti began in San Francisco. The case, Veterans for Common Sense v.
Peake, is expected to continue through May 1.
Morrison & Foerster senior counsel Gordon Erspamer represents the two
organizations that are plaintiffs in the case: Veterans for Common Sense
and Veterans United for Truth. Erspamer, who is co-chair of MoFo's energy
group, also has 30 years of experience handling pro bono litigation on
behalf of veterans. He says this case is the first of its kind against the
DVA.
The suit claims that many disabled combat
veterans are in dire need of counseling and other services they are not
currently receiving from the U.S. government. Erspamer estimates that 120
veterans who served in Iraq or Afghanistan commit suicide each week. The
veterans' groups are not seeking monetary damages but want reform of a
health care system in which they allege a huge backlog of cases prevents
veterans from receiving timely care.
The case was initially filed last July as a class action but the
plaintiffs decided not to seek class certification. "It's hard to do a
class action with veterans who have [post traumatic stress disorder],"
Erspamer says. "We think we can get the relief we need through these
organizational plaintiffs."
Disability Rights Advocates, a Berkeley-based nonprofit, is serving as
Erspamer's co-counsel.
Daniel Bensing, the Department of Justice lawyer who is lead counsel for
the DVA, declined to comment. A Justice Department spokesperson also
declined to comment.
But in a pretrial brief filed by the DVA on April 14, the government
argued that "constitutional and statutory considerations" should preclude
the federal court from hearing many of the veterans groups' claims and
ordering the remedies they seek.
Several high-ranking DVA officials are expected to testify at the trial,
according to a witness list included in the DVA's brief.
Arturo Gonzalez, a partner and chair of the trial practice group at MoFo,
is also working on the case with San Francisco-based associates Alexandria
Amezcua, Suzanna Brickman, Jennifer Gould, Ryan Hassanein, Heather Moser,
Natalie Naugle and Stacey Sprenkel. Assisting lead DRA lawyer Sidney
Wolinsky are Jennifer Bezoza, Katrina "Kasey" Corbit and Ron Elsberry.
-------------------------
Second story here...
http://classactionblawg.co
m/2008/04/21/veterans-adminstration-class-action-not-a-class-action-at-all/
Story below:
-------------------------
Veteran’s Administration “Class Action” Not a
Class Action at All
There have been a variety of recent news reports about a trial that began
today in a “class action” lawsuit against the United States Department of
Veterans Affairs, or VA.
The case, now captioned Veterans for Common Sense v. Peake, was filed by
two nonprofit groups on behalf of veterans of the Iraq and Afganistan wars
and earlier conflicts alleging systemic problems in the VA’s system of
providing healthcare services and admistering benefits for veterans with
Post Traumatic Stress Disorder (PTSD) and other mental illnesses. Among
the allegations is that delays in the processing of claims and other
problems with claims handling and appeals of the denials of those claims
have contributed to an “epidemic of suicides” among affected veterans. A
two-week trial to the court began today before Judge Samuel Conti of the
United States District Court for the Northern District of California in
San Fransisco. The plaintiffs seek injunctive relief including supervision
over VA healthcare services and the administration of VA benefits,
including the appointment of a special master to oversee the handling of
claims. The claims appear to include constitutional due process claims and
statutory claims under specific federal laws providing for veterans’
medical benefits. Trial is to the court rather than to a jury because the
plaintiffs are seeking an injunction and not money damages.
From a class action practitioner’s perspective, perhaps the most
interesting aspect of the case is the fact that it is not a class action
at all. According to a report on Law.com (above story), the case was
originally filed as a class action but the plaintiffs’ attorneys
ultimately made a strategic decision not to seek class certification.
Rather than seeking certification on behalf of a class of veterans,
plaintiffs’ counsel decided to proceed solely on behalf of two nonprofit
veterans’ advocacy groups, Veterans for Common Sense and Veterans United
for Truth. In an order dated January 10, 2008, Judge Conti had previously
denied the government’s motion to dismiss on the ground that the two
groups lacked standing to sue. (Copy of January 10, 2008 Order here...
http://www.veteransptsdclassaction.org/pdf/courtfiled/1-10-08-Order%20re%20MTD-POM.pdf
). Rejecting the government’s argument that the two groups were mere
advocacy groups who could not sue by themselves without the participation
of individual veterans, the court held that the two groups had
organizational standing under the principles outlined by the United States
Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 181 (2000) and Warth v. Seldin, 422 U.S. 490, 511
(1975). Under these principles, an association may sue on behalf of its
individual members if
its members would otherwise have standing to sue in their own right,
the interests at stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Friends of the Earth, 528 U.S. at 181. In turn, the participation of
individual members is not required when its members face “immediate or
threatened injury” as a result of the challenged action and “the nature of
the claim and of the relief sought does not make the individual
participation of each injured party indispensable to proper resolution of
the cause.” Warth, 422 U.S. at 511. In applying these standards, the court
concluded that
[g]iven the nature of Plaintiffs’ claims, especially in regard to the
allegations of systemic legal violations, the Court, at this stage, is not
convinced that the individual participation of each injured party will be
indispensable to the present action. Plaintiffs’ due process claim will
depend largely on the claims adjudication procedures enacted under the
VJRA, and not necessarily on individual veteran’s claims. The same is true
regarding Plaintiffs’ access to the courts claim. Plaintiffs’ claim for
denial of statutorily mandated health care can satisfy this standing
requirement if, for example, Plaintiffs demonstrate that the current
system under the VJRA leads to system-wide denials of this health care or
if the VA fails to recognize and treat PTSD within this two-year period.
January 10, 2008 Order at 6. However, the Court also suggested that this
decision might be subject to later change should future events make clear
that the participation of individual veterans would be required.
Presumably, this means that the representative nature of the lawsuit is
subject to additional argument and evidence at trial, in addition to the
merits of the plaintiffs’ claims.
Copies of the various pleadings, orders, and other filings in the case are
available at a website provided by the plaintiff organizations (click here
http://www.veteransptsdclassaction.org/index.html ).
Other various articles discussing the case are listed below:
http://www.mercurynews.com/news/ci_9004226
http://news.bbc.co.uk/2/hi/americas/7357909.stm
http://www.reuters.com/article/asiaCrisis/idUSN18393680
http://www.opednews.com/articles/genera_jason
_le_080421_va_confirms_18_vets_.htm
http://abclocal.go.com/kgo/story?section=news/local&id=6094234
http://www.fogcityjournal.com/wordpress/2008/04/19/
veterans-claims-of-inadequate-care-goes-to-trial-monday/
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/0
5/MNQLUQ4IS.DTL&hw=veterans&sn=001&sc=1000
http://www.commondreams.org/archive/2008/01/17/6440/
-------------------------
posted by Larry
Scott
Founder and Editor
VA Watchdog dot Org
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