Veterans for Common Sense et al v. Peake et al

Reply Memorandum re MOTION to Dismiss

N.D. Cal.November 30, 2007

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 Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) JEFFREY S. BUCHOLTZ Acting Assistant Attorney General SCOTT N. SCHOOLS Interim 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) 305-0693 Facsimile: (202) 616-8460 Email: Daniel.Bensing@USDOJ.gov Attorneys for Defendants Hon. Gordon Mansfield, 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. GORDON H. MANSFIELD, Secretary of Veterans Affairs, et al., Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-3758-SC REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Date: December 14, 2007 Time: 10:00 a.m. Courtroom: 1 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 1 of 27 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 iReply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) TABLE OF CONTENTS Page Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Plaintiffs Lack Standing to Pursue Their Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. The VJRA Bars this Court From Considering Plaintiffs’ Challenges to VA “Policies Practices and Procedures”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 a. “veterans’ total inability to call VA witnesses” at the Regional Office level.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 b. “the absence of any neutral decision-maker at the regional office stage”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 c. The alleged “lack of authority” by the CAVC to “enforce its own decisions,” grant “injunctive or declaratory relief, or grant “expedited relief.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 d. The absence of any procedures to obtain any relief extending beyond that applying to a single claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 e. The limited availability of discovery at the Regional Office level . . . . . . . . . . . . . 5 f. The “prohibition on the veteran’s ability to . . . pay a lawyer at the . . . regional office stage”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 III. The “Policies Procedures and Practices” Adopted by VA to Administer its Claims Adjudication System Are Not Final Agency Action Reviewable Under the APA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. Plaintiffs Cannot Avoid Section 511 By Challenging VA’s Decisions Under the Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 V. The Court Lacks Jurisdiction to Consider Plaintiffs’ Medical Care Claim . . . . . . . . . . . 13 VI. The Claims Adjudication Process Created by the VJRA is Constitutional. . . . . . . . . . . . 16 a. The Standard for Review of a Facial Challenge to the Constitutionality of an Act of Congress.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 b. The VA Claims Adjudication Process is Constitutional. . . . . . . . . . . . . . . . . . . . 17 VII. This Court Lacks Jurisdiction Over the U.S. Court of Appeals for Veterans Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 2 of 27 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 iiReply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) TABLE OF AUTHORITIES PAGE(S) Abbs v. Principi, 237 F.3d 1342 (Fed. Cir 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Bd. of Regents v. Roth, 408 U.S. 564 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Beamon v. Brown, 125 F.3d 965 (6 Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 6, 7, 10, 12 Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Brown v. Dep't of Veterans Affairs, 451 F. Supp. 2d 273 (D. Mass. 2006). . . . . . . . . . . . . . . . 12 Califano v. Sanders, 430 U.S. 99 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Carpenter v. Dep't of Transp., 31 F.3d 313 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Chinnock v. Turnage, 995 F.2d 889 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . 17 Community Action of Laramie Co., Inc. v. Bowen, 866 F.2d 347 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Cleland v. Devine, 616 F.2d 1080 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 E. Paralyzed Veterans Ass'n v. Sec'y of Veterans Affairs, 257 F.3d 1352 (Fed. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 9 Ecology Ctr., Inc. v. U.S. Forest Service, 192 F.3d 922 (9th Cir. 1999). . . . . . . . . . . . . . . . . 9, 11 Engine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 498 F.3d 1031 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Gete v. INS, 121 F.3d 1285 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gilligan v. Morgan, 413 U.S. 1 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Gonzales v. Carhart, 127 S.Ct. 1610 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Hall v. U.S. Dept. of Veterans' Affairs, 85 F.3d 532 (11th Cir. 1996). . . . . . . . . . . . . . . . . . . . 17 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 3 of 27 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 iiiReply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Heckler v. Chaney, 470 U.S. 821 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . 11 Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003).. . . . . . . . . 16 ITT Corp. v. Local 134, 419 U.S. 428 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 J.L. v. Social Sec. Admin., 971 F.2d 260 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Kirk v. INS, 927 F.2d 1106 (9th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Laird v. Tatum, 408 U.S. 1 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Lane v. Pena, 518 U.S. 187 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Larrabee v. Derwinski, 968 F.2d 1497 (2d Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12, 13 Lincoln v. Vigil, 508 U.S. 182 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14 Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Molski v. Mandarin Touch Rest., 359 F. Supp. 2d 924 (C.D. Cal. 2005). . . . . . . . . . . . . . . . . . . 2 Moore v. Johnson, 582 F.2d 1228 (9th Cir. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Nat. Ass'n Radiation Survivors v. Derwinski, 994 F.2d 583 (9th Cir. 1993). . . . . . . . . . . . . . . 17 Northcoast Env'l Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . 11 Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). . . . . . . . . . . . . . . . . . . . 9, 10 Peck v. Bessing, No. C 05-0960-SC, 2006 WL 213736 (N.D. Cal. January 27, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Redwood Christian Schools v. County of Alameda, No. C-01-4282-SC, 2007 WL 214317 (N.D. Cal. January 26, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Rizzo v. Goode, 423 U.S. 362 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Rosen v. Walters, 719 F.2d 1422 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rust v. Sullivan, 500 U.S. 173 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 4 of 27 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 ivReply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Traynor v. Turnage, 485 U.S. 535 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12 U.S. v. Bynum, 327 F.3d 986 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18 U.S. v. Salerno, 481 U.S. 739 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18 United States v. Phelps, 955 F.2d 1258 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985). . . . . . . . . . . . . . . 18, 19 Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . 8 Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Zuspann v. Brown, 864 F. Supp. 17 (W.D. Tex. 1994), aff'd, 60 F.3d 1156.. . . . . . . . . . . . . . . . 14 STATUTES 5 U.S.C. § 551(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 20 5 U.S.C. § 701(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 5 U.S.C. § 706(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. § 1651(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 29 U.S.C. § 794. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 38 U.S.C. § 211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 38 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 13 38 U.S.C. § 511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 38 U.S.C. § 1705(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 38 U.S.C. § 1710(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 38 U.S.C. § 1710(e)(1)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 38 U.S.C. § 5101-5109A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6 38 U.S.C. § 5103A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 38 U.S.C. § 5702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38 U.S.C. § 5711. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 38 U.S.C. § 5904(c)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38 U.S.C. § 7107(a)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38 U.S.C. § 7251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 5 of 27 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 vReply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) 38 U.S.C. § 7252(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 38 U.S.C. § 7264(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 38 U.S.C. § 7265. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Veterans' Health Care Eligibility Reform Act of 1996, Pub. L. No. 104-262.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Veterans' Judicial Review Act ("VJRA"), Pub. L. No. 100-687, 102 Stat. 4105 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Joshua Omvig Veterans Suicide Prevention Act, Pub. L. No. 110-110,121 Stat. 1031 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RULES AND REGULATIONS 38 C.F.R. § 3.100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 38 C.F.R. § 3.103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 17 38 C.F.R. §3.159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 38 C.F.R. § 3.304(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 38 C.F.R.§ 17.36(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 38 C.F.R. § 20.101(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 38 C.F.R. 20.201, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 38 C.F.R. § 20.711. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 38 C.F.R. § 20.1304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 LEGISLATIVE MATERIAL H.R. Rep. No. 100-963 at 21 (1988), reprinted in U.S.C.C.A.N. 5782. . . . . . . . . . . . . . . . . . . . . . 3 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 6 of 27 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 1Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Introduction The scope of medical services and benefits provided to this nation’s veterans is now being vigorously debated by the Political Branches of the Federal Government. Just six weeks ago, the President proposed expansion of various veterans programs and targeted increases in funding to address the needs of veterans of both recent and older conflicts. See 43 Weekly Comp. Pres. Doc. 1347-49 (October 16, 2007). Congress recently addressed plaintiffs' concerns about suicide rates among veterans with post traumatic stress disorder (PTSD) on November 5, 2007, when it enacted the Joshua Omvig Veterans Suicide Prevention Act, Pub. L. No. 110- 110,121 Stat. 1031 (2007), which establishes several new program to address this problem. While plaintiff organizations doubtless sincerely believe that they know best how to craft and administer veterans programs, their advocacy should be directed to the political sphere, rather than trying to accomplish their goals by trying to use the Due Process Clause as an all-purpose tool to direct Federal Government policy through the adjudicatory power of the Judicial Branch. In their Opposition to Defendants’ Motion to Dismiss (Opp.), plaintiffs start with specious logic in asserting that because defendant identified several limits on the subject matter jurisdiction of federal district courts, which when considered together show that this Court should not entertain the claims in the complaint, the mere quantity of these restrictions make each suspect. Opp. at 1. But just as stakes in a picket fence each cover only a limited area but together form an impenetrable barrier, the various limits on jurisdiction imposed by Congress and explained by the Supreme Court prevent plaintiffs’ complaint from being viable. Although defendant explained each of these jurisdictional limits in its memorandum in support of the motion to dismiss, plaintiffs never come to grips with the joint and interactive effect of these three separate limitations on this Court’s subject matter jurisdiction. Instead, they recast their claims, sometimes inconsistently, to try to avoid each in turn. Hemmed in on one side by 38 U.S.C. § 502, which vests exclusive jurisdiction for challenges to Department of Veterans Affairs (VA) regulations in the Federal Circuit, and on the other by the Administrative Procedure Act (APA), which waives sovereign immunity only for final agency action that when applied causes deleterious effects, plaintiffs cannot circumvent the express Congressional Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 7 of 27 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 Notwithstanding statements in their Opposition, plaintiffs “bring this action as1 representatives of their members and/or constituencies” Compl. ¶ 38, and do not allege injury to their own organizational interests only. Plaintiffs also lack standing because this court is without the power to grant much of the2 relief that plaintiffs seek. In particular, the Court cannot order Congress to appropriate additional funds to improve and expedite the VA’s claims adjudication process, relief that is essential to all 2Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) direction that challenges to decisions by the Secretary of VA that affect the benefits of veterans are exclusively the province of a specially-created, Article I court, with appeal available to the Federal Circuit. For this reason, and because plaintiffs’ other statutory-based theories are equally untenable, none of their claims can survive and the motion to dismiss should be granted. I. Plaintiffs Lack Standing to Pursue Their Claims To establish representational standing, plaintiffs must show that “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401, 1406 (9 Cir. 1991)th (emphasis added). To make that showing concerning the claims asserted on behalf of individuals, the plaintiff organizations must point to actual individuals suffering a cognizable injury. Memorandum in Support of Defendants’ Motion to Dismiss (Def. Mem.) at 4-5. The1 fact that plaintiffs seek only injunctive relief does not relieve them of this burden. See Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (request for injunctive relief does not automatically confer representational standing). The participation of individual members would be necessary for the Court to determine whether they have standing in their own right - whether any of defendants’ alleged actions actually caused individual veterans cognizable and redressable harm, whether they have exhausted administrative remedies, and whether the relief the organizations request would redress such harm. See, e.g., Molski v. Mandarin Touch Rest., 359 F. Supp. 2d 924, 935 (C.D. Cal. 2005) (denying representational standing because individual plaintiff’s participation required to establish his own standing). Indeed, plaintiffs do not even allege facts that would provide standing for their members. Complaint (Compl.) ¶¶ 35-6 (only alleging that organizations’ members have PTSD, have or may have claims pending before the Department of Veterans Affairs (VA), and/or have had claims denied by VA).2 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 8 of 27 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 of plaintiffs claims. See Compl. ¶ 26; 184; 204-15. “The committee believes that it is strongly desirable to avoid the possible disruption of3 VA benefit administration which could arise from conflicting opinions on the same subject due to the availability of review in the 12 Federal Circuits and the 94 Federal Districts. The committee also believes that the subject of veterans benefits rules and policies is one that is well suited to a court which has been vested with other types of specialized jurisdiction.” Id. at 28. 3Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) II. The VJRA Bars this Court From Considering Plaintiffs’ Challenges to VA “Policies Practices and Procedures” Central to reaching a proper interpretation of the preclusion of review provisions of the Veterans’ Judicial Review Act (“VJRA”), Pub. L. No. 100-687, 102 Stat. 4105 (1988), 38 U.S.C. §§ 502 and 511, is the recognition that it was the product of Congressional dissatisfaction with judicial decisions, culminating in Traynor v. Turnage, 485 U.S. 535 (1988), that found ways to avoid the preclusion of judicial review contained in the predecessor statute, 38 U.S.C. § 211. In the House report accompanying the VJRA, Congress explicitly noted that “the Court’s opinion in Traynor would inevitably lead to increased involvement of the judiciary in technical VA decision-making,” H.R. Rep. No. 100-963, at 21 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5803 which Congress strongly opposed. Consequently, Congress tightened section 211's preclusion of review language, noting that “[t]he effect of this change is to broaden the scope of section 211,” id. at 27, to prevent federal courts (other than the Court of Appeals for Veterans Claims (CAVC) and the Federal Circuit), from entertaining precisely the sort of challenge that plaintiffs bring in this action. See also Larrabee v. Derwinski, 968 F.2d 1497, 1501 ( Cir.3 2d 1992). A precise identification of the statutory provisions or agency actions challenged by plaintiffs is essential to a correct determination of the Court’s jurisdiction over plaintiffs’ claims. Yet plaintiffs are evasive in specifying the precise nature of their claims, asserting vaguely that “they are challenging a series of VA’s policies, procedures and practices,” Opp. at 8, all of which in some way allegedly harm veterans with PTSD. However, a careful parsing of precise statutory provisions and regulations that plaintiffs challenge, see Opp. at 2-3, Compl. ¶ 30a-30i, indicates that they challenge the following aspects of the VA claims adjudication process: a. “veterans’ total inability to call VA witnesses” at the Regional Office level. Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 9 of 27 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 A claimant can submit new evidence to the BVA, 38 C.F.R. § 20.1304, and the BVA can4 consider new evidence under certain circumstances, or remand the claim to the VA for it to consider the new evidence, 38 C.F.R. § 20.1304(c). 4Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) (Opp. at 2:23-25; Compl. ¶¶ 30d; 104; 202d) The statute establishing VA claims procedures, 38 U.S.C. § 5101-5109A, requires the VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate” a claim, 38 U.S.C. § 5103A, see also 38 C.F.R. § 3.159, but does not grant claimants subpoena power to compel testimony. Additionally, the statute authorizing the VA to issue subpoenas, 38 U.S.C. § 5711, does not authorize claimants to issue subpoenas in support of claims at the Regional Office level. Claimants do, however, have the right to request that a subpoena be issued by the Board of Veterans Appeals (BVA), but they may not subpoena VA adjudicatory personnel, see 38 C.F.R. § 20.711. 4 b. “the absence of any neutral decision-maker at the regional office stage” (Opp. at 2:25; Compl ¶ 30b; 103; 202a) The VA claims procedure statute provides that the initial decisions on claims shall be made by the “Secretary” (or his designee), 38 U.S.C. §§ 511; 5104, without any restriction on the status of the official who may take that action. See also 38 C.F.R. § 3.103 (procedural rights of claimants). c. The alleged “lack of authority” by the CAVC to “enforce its own decisions,” grant “injunctive or declaratory relief, or grant “expedited relief.” (Opp. at 2:25-28; 9-10; Compl. ¶ 30g; 30h; 133-44; 202e; 202f; 202i). Under the VJRA, the Court of Appeals for Veterans Claims (CAVC) has the authority to “affirm, modify or reverse” a decision of the BVA as well as to order a remand, 38 U.S.C. § 7252(a), and under the All Writs Act, it may issue extraordinary writs in aid of its jurisdiction, 28 U.S.C. § 1651(a). And, as with any court, the CAVC can control its docket to expedite appeals where appropriate. See 38 U.S.C. § 7264(a); CAVC Rule 47, (“Expedited Proceedings”). See also 38 U.S.C. § 7265 (contempt authority). d. The absence of any procedures to obtain any relief extending beyond that applying to a single claim (Opp. at 2:28-3:1; Compl. ¶ 30f; 202g) In the VJRA and predecessor statutes, Congress has elected to provide for an informal procedure to adjudicate individual claims for benefits, without providing alternate remedies, such as a class action procedure. Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 10 of 27 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 A challenge to the constitutionality of the statute as applied to a particular claim would5 undeniably have to be presented to the VA for decision in the context of an individual claim and hence be insulated from review in this Court by section 511. See 38 C.F.R. 20.711 (limited subpoena authority); 38 C.F.R. 3.103 (claims procedures);6 38 C.F.R. 3.159 (limitations on discovery). 5Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) However, the BVA may elect to advance an appeal on its docket “if the case involves interpretation of law or general application affecting other claims.” 38 U.S.C. § 7107(a)(2)(A). e. The limited availability of discovery at the Regional Office level (Opp. at 3:1- 2; Compl. ¶ 30c; 104; 202c; 202d) The VA is required by statute to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim,” 38 U.S.C. § 5103A(a)(1), and to make reasonable efforts to “obtain relevant records . . . that the claimant adequately identifies,” id. § 5103A(b)(1); see also 38 C.F.R. § 3.159 (implementing regulation); 38 U.S.C. § 5702 (right to obtain VA records). f. The “prohibition on the veteran’s ability to . . . pay a lawyer at the . . . regional office stage” (Opp. at 3:2-3; Compl. ¶ 97; 30i; 202j). In creating a non-adversarial claims procedure, Congress placed limits on fees that may be charged to claimants by attorneys and the stages in the process where attorneys can charge a fee for representation. Recently Congress narrowed those restrictions and authorized a claimant to pay an attorney to represent them after the claimant files a notice of disagreement with the initial determination of the Regional Office, 38 U.S.C. § 5904(c)(1). Thus, plaintiffs’ constitutional challenges to the operation of the VA claims system implicates three distinct categories of governmental action. First, plaintiffs’ claims include facial challenges to the VJRA and other statutes that established the VA’s informal claims adjudication process. Here, plaintiffs bear the heavy burden of demonstrating that no set of circumstances5 exists under which this legislation would be Constitutional. See Argument VI, infra. The second category are challenges to VA rules that allegedly do not provide sufficient procedural rights for claimants. However, these claims cannot be entertained by this Court, since judicial review of6 VA rules “may be sought only in the United States Court of Appeals for Federal Claims.” 38 U.S.C. § 502; see Chinnock v. Turnage, 995 F.2d 889 (9 Cir. 1993) (regulations establishingth Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 11 of 27 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 Plaintiffs try to characterize their claims as not challenging decisions made by the7 Secretary to avoid the preclusive effect of § 511. As shown in the next section, this questionable characterization provides plaintiffs no help as, to the extent it is true, their claims would not be actionable under the limited sovereign immunity afforded by the APA. First, Beamon was a putative class action with its class action status unresolved, exactly8 like this case in its current posture. Opp. at 17:18-18:11. But in any event, that aspect of the 6Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) procedure for review of radiation claims may only be challenged before Federal Circuit). Finally, some of plaintiffs’ claims might be construed to challenge agency action by the VA other than rules, for example, the decision to assign regional office claims examiners rather than Administrative Law Judges to adjudicate claims at the initial level. But such broad policy choices by the VA are made unreviewable in this Court by 38 U.S.C. § 511. Plaintiffs7 repeatedly insist that section 511 does not bar their claims because it only applies to individual benefit denials, which they insist they are not challenging. Opp. at 11. However, plaintiffs’ argument is premised on an overly-narrow interpretation of section 511(a)'s preclusion of review language, which not only bars district courts from entertaining challenges to individual benefit determinations, but also to any “decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans . . .” Id. (emphasis added). So, for example, decisions by the Secretary on how to implement the VA claims administration statutes, 38 U.S.C. §§ 5101- 5109A, a law which undeniably “affects the provision of benefits to veterans,” are squarely within section 511's preclusion of review. The only court that has considered claims such as those at issue here, i.e. broad, programmatic challenges to the process by which the VA adjudicates claims, found them to be barred by section 511. Beamon v. Brown, 125 F.3d 965 (6 Cir. 1997). The Beamon Courtth noted that to decide the broad challenge to the VA’s claims procedures, “the District Court would need to review individual claims for veterans benefits, the manner in which they were processed, and the decisions rendered by the regional office of the VA and the BVA,” id. at 970-971, and these determinations, the Court held, were within the exclusive jurisdiction of the CAVC, id. at 971. Plaintiffs fail to offer any legitimate basis for distinguishing Beamon, a case on all fours with this action. Opp. at 17-18. 8 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 12 of 27 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 claim, as well as the scope of relief requested, is irrelevant to jurisdiction. Second, it is irrelevant that the plaintiff organization in this case cannot “access the VA claims system at all,” Opp. at 18:11-12, since the members of the plaintiff organizations can submit claims, as could the Beamon plaintiffs. Finally, in both this case and Beamon, the plaintiffs are attempting to challenge decisions of the Secretary - not as to individual benefits, but as to how he elects to administer laws that affect the payment of benefits. Opp. at 18:16-22. In light of the unusual statutory history of section 511 and its predecessor, and the9 express Congressional intent to preclude judicial review in one court in favor of exclusive review in another court, cases construing other statutes containing prohibitions on judicial review, e.g. Gete v. INS, 121 F.3d 1285 (9 Cir. 1997), cited by plaintiffs, Opp. at 14, are of little relevance. th That case is particularly inapposite as the statute in question did not allow for any judicial review 7Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Plaintiffs attempt to rely on a few cases that have found exceptions to section 511's jurisdictional bar in narrow and unusual circumstances, such as where courts have found that there has been no decision by the VA on the precise question presented to the court by the plaintiffs’ claim. See Opp. at 12, citing e.g. Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006). Broudy was an action brought by veterans exposed to radiation who alleged that a cover-up of the extent of their exposure by the government denied them access to the courts. The Court held that section 511 did not apply because it was undisputed that the only two decisions potentially at issue - whether the information withheld impaired the consideration of veterans’ claims and whether the VA failed to consider relevant information - had never been decided by the VA. Id. at 114. The merits of VA decisions and policies was not at issue. Broudy’s rationale is inapplicable here because the plaintiffs challenge a plethora of both informal policies and formal rules the VA has considered and adopted. For example, whether the VA should provide for full discovery rights at the Regional Office stage of a claim was decided by the Secretary when the VA adopted its regulations establishing the process by which claims will be adjudicated at the Regional office, 38 C.F.R. § 3.100; 3.102-04; 3.150-52; 3.159; 3.200- 17. To find the Secretary’s decisions improvident would require the Court to assess the relative accuracy of literally thousands of benefits decisions involving “questions of law and fact . . . that affect the provision of benefits” in direct contravention of the explicit terms as well as the underlying intent of section 511. There is no ground to support the position that even the Broudy Court would countenance such an evisceration of section 511. Moreover, Broudy is a decision9 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 13 of 27 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 of the INS determination to forfeit a vehicle. 121 F.3d at 1291. 8Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) of another circuit that conflicts with the Ninth Circuit’s decision in Rosen v. Walters, 719 F.2d 1422 (9 Cir. 1983). On similar facts (a claimant’s allegation that he was denied benefitsth because documents pertaining to his illness were destroyed by the government), this Circuit found that it lacked subject matter jurisdiction under section 211. Id. at 1423. Consequently, since any challenge to actions by the VA in structuring the claims adjudication process undeniably “affect the provision of benefits,” section 511 deprives this Court of jurisdiction to consider them. III. The “Policies Procedures and Practices” Adopted by VA to Administer its Claims Adjudication System Are Not Final Agency Action Reviewable Under the APA If section 511 were not applicable because plaintiffs’ claims are not challenges to specific policies or decisions of the Secretary affecting benefits, there would still be no subject matter jurisdiction over these non-rulemaking actions of the VA that plaintiffs challenge because, by definition, they would not be final agency action for APA purposes. The plaintiff advocacy organizations seek no less than wholesale court supervision and reordering of vast programs within VA, including its large health care and financial benefits programs. But “[t]he federal courts . . . were not established to operate the administrative agencies of government,” Cmty. Action of Laramie Co., Inc. v. Bowen, 866 F.2d 347, 354 (10 Cir. 1989) (citation omitted), andth plaintiffs’ broad, “‘programmatic challenge’ to agency policy is improper.” See W. Watersheds Project v. Matejko, 468 F.3d 1099, 1110 (9 Cir. 2006). th Plaintiffs concede, as they must, that their claim is constrained by the limits on the APA’s waiver of sovereign immunity. But, plaintiffs argue (in a conclusory fashion) that they “are challenging a series of VA’s policies, procedures, and practices,” all of which qualify as “agency rules” or some unspecified other type of “agency action” under 5 U.S.C. § 551(13). Opp. at 8. Under the APA, the plaintiff organizations’ broad-based attack on “practices, policies or procedures” of the VA fails because plaintiffs “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, [plaintiff] Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 14 of 27 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 9Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) must direct its attack against some particular ‘agency action’ that causes it harm.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“SUWA”), quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (“NWF”). The APA defines “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). While plaintiffs state that they do not challenge “any VA regulation,” Opp. at 22, their position that they challenge “agency rules” dooms their claims since “rules” are obviously decisions of some sort by the Secretary affecting benefits covered by section 511. To the extent plaintiffs seek to challenge VA “policies, procedures, and practices” that are not embodied in agency regulations, they must at least show that the policy, procedure or practice in question has manifested itself as a concrete and final agency action, one that consummates the agency’s decisionmaking process and determines legal consequences. E.g., Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925-926 (9 Cir. 1999). th An abstract alleged “practice” or manifestation of “policy,” does not qualify as reviewable, final agency action. Cf. ITT Corp. v. Local 134, 419 U.S. 428, 442-48 (1975) (agency process without binding effect, even if it leads to significant “practical consequences,” not reviewable under 5 U.S.C. § 551). Rather, the only final agency action possibly subject to review would be the concrete application of the alleged practice. Put another way, plaintiffs’ challenge to an abstract agency policy or practice that is not concrete agency action is not ripe absent an application that causes a plaintiff harm. See Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 695 (9 Cir. 2007) (“a regulation is ordinarily not ripe for review ‘until the scope of theth controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him.’” (quoting NWF, 497 U.S. at 891; emphasis as in Ruthenbeck). Of course, the practical application of VA policies are the results in individual benefits determinations for which review is available only in the CAVC. The examples of allegedly final agency action cited by plaintiffs in their opposition only underscore why there is no waiver of sovereign immunity. See Opp. at 8, citing Compl. Plaintiffs point to ¶ 31a of the Complaint, which challenges delays in adjudication of veterans’ Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 15 of 27 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 The plaintiff organizations refer to “Section 706(a),” which does not exist in Title 5 of10 the U.S. Code. Defendants assume plaintiffs meant to cite § 706(1). 10Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) claims. Such a challenge must be brought to the agency action or inaction in question; plaintiffs identify no agency rule that requires or causes delay. See also Beamon v. Brown, supra. Plaintiffs point to ¶ 31b of the Complaint, which they describe as “challenging rules encouraging tampering with records in veterans’ claim files,” Opp. at 8, but the paragraph in question (and Complaint in sum) points to no such rules; rather, it generally alleges that such tampering occurs. This claim is not reviewable under the APA absent any factual context or any plaintiff who alleges he is harmed by file-tampering. Similarly, plaintiffs point to an alleged “improper compensation program” that they claim encourages VA employees to destroy claim files; they do not point to any actual agency rule or concrete action, however. Compl. ¶¶ 227-34 (cited in Opp. at 8). Plaintiffs claim to challenge “VA’s reliance upon improper ‘personality disorder’ discharges,” Pl. Mem. 8 (citing Compl. ¶¶ 216-21), but the cited portions of the Complaint criticize not any action by the VA but, rather, alleged actions by the military. For similar reasons, plaintiffs are also mistaken in arguing that their “claims regarding VA’s failure to make timely decisions” are “ripe for judicial review” under the APA, 5 U.S.C. § 706(1), which permits courts to “compel agency action unlawfully withheld or unreasonably10 delayed.” See Opp. at 8. That is because “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.” SUWA, 542 U.S. at 64 (emphasis in original); Peck v. Bessing, No. C 05-0960-SC, 2006 WL 213736, at * 2-3 (N.D. Cal. January 27, 2006) (same). As defendants have explained and plaintiffs’ explanation of their claims show, however, the plaintiff organizations do not challenge any discrete, identifiable action, inaction or event. Their challenges are programmatic and, thus, impermissible. In NWF., the Court found that “the ‘land withdrawal review program”’ plaintiffs had challenged in that case “is not an identifiable action or event. . . . [Plaintiffs] cannot demand a general judicial review of the [agency’s] day-to-day operations.” 497 U.S. at 899. Like the “Challenged VA Practices” at issue here, see Compl. ¶ 31, the “land withdrawal review program” Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 16 of 27 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 As defendants noted in their opening memorandum, plaintiffs also cannot proceed under11 the APA because the plaintiff organizations’ members have an adequate remedy in a court. See Def. Mem. 8; Beamon, 125 F.3d at 967-970 (holding the CAVC provides an adequate remedy to challenge VA rules and procedures). 11Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) was “simply [a] name” for “the continuing (and thus constantly changing) operations of the [agency] in reviewing” applications and carrying out other administrative responsibilities. NWF., 497 U.S. at 890. The Court held that the “program” was not an identifiable agency action, much less final agency action, for purposes of review under the APA. Id. at 899. Consequently, “the flaws in the entire ‘program’ - consisting principally of many individual actions referenced in the complaint” could not be “laid before the courts for wholesale correction under the APA.” Id. at 893. The Ninth Circuit has likewise ruled that NWF bars programmatic challenges. See Ecology Ctr., 192 F.3d at 925-26 (no jurisdiction “[b]ecause [plaintiff] fails to identify any ‘concrete action . . . that harms or threatens to harm’ it”); Northcoast Env’l Ctr. v. Glickman, 136 F.3d 660, 669-670 (9 Cir. 1998); cf. High Sierra Hikers Ass’n v. Blackwell, 390th F.3d 630, 639 (9 Cir. 2004) (finding jurisdiction under NWF where plaintiff “alleged specificth discrete agency actions taken by the Forest Service that have caused harm” and “challenged certain agency actions[,]” not “the entirety of the wilderness plan”). Plaintiffs’ Complaint boldly requests that this Court to decree a “comprehensive program” governing the manner by which defendants adjudicate veterans’ claims and provide health care. See Rizzo v. Goode, 423 U.S. 362, 365 (1976). First, plaintiffs intend to conduct a “broad-scale investigation . . . armed with the subpoena power” of this Court, “to probe into” defendants’ activities. Laird v. Tatum, 408 U.S. 1, 14 (1972). Thereafter, a “judicial evaluation” of defendants’ practices will presumably take place, Gilligan v. Morgan, 413 U.S. 1, 5 (1973), and culminate in a determination by this Court of the extent to which defendants’ activities are “appropriate to [their] mission,” or should be supplanted by judicially-crafted rules and regulations. Laird, 408 U.S. at 14. None of this is proper. NWF., 497 U.S. at 899. 11 IV. Plaintiffs Cannot Avoid Section 511 By Challenging VA’s Decisions Under the Rehabilitation Act Next, plaintiffs attempt to style their grievances as a claim under Section 504 of the Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 17 of 27 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 As noted, plaintiffs also obscure the extent to which they challenge agency regulations12 themselves. For example, plaintiffs’ challenge to the allegedly “cumbersome multi-step appeals process,” Compl. ¶ 114, is nothing more than a challenge to the extensive regulations governing the BVA. See 38 C.F.R. 20.201 et seq. Their suggestion that sufferers of PTSD should not be required to identify the stressor giving rise to their disease in order to establish service connection, Opp. at 24, is a challenge to 38 C.F.R. 3.304(f) (requiring establishment of stressor). These challenges must be brought in the Federal Circuit. See 38 U.S.C. § 502. 12Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Rehabilitation Act. Because Congress enacted § 511 to prevent precisely this kind of indirect judicial inquiry into VA decision-making, this claim is likewise “plainly outside the jurisdiction of this Court.” Brown v. Dep't of Veterans Affairs, 451 F. Supp. 2d 273, 278 (D. Mass. 2006); see also H. Rep. 100-963, at 21 (rejecting suggestion that review may be had by alleging violation of statute not codified in Title 38); cf. Carpenter v. Dep't of Transp., 13 F.3d 313, 316 (9th Cir. 1994) (specific jurisdictional limitations in Hobbs Act trump district court's general authority to entertain Rehabilitation Act claims). Plaintiffs fail to cite a single case construing § 511(a) to permit district courts to exercise jurisdiction over a challenge to VA benefits policies and procedures simply because the Rehabilitation Act is invoked. Plaintiffs stake their entire argument on Traynor v. Turnage, 485 U.S. 535, the very case that animated Congress's enactment of § 511(a). See H. Rep. 100-693, at 21 (describing the “eroding effect that decisions such Traynor [had] on the independence of the executive branch”); see also Larrabee, 968 F.2d at 1500-01 (construing § 511 to supercede Traynor). Plaintiffs concede, as they must, that Congress passed § 511 in large part because “the Court's opinion in Traynor [if left undisturbed] would inevitably lead to increased involvement of the judiciary in technical VA decision-making.” See Opp. at 24; H. Rep. 100-963, at 21. Yet they fail entirely to explain why their own Rehabilitation Act claim would not lead to the very same impermissible result. In order to determine whether VA adjudication procedures discriminate against veterans solely on the basis of PTSD, 29 U.S.C. § 794, this Court would necessarily have to engage in the kind of technical inquiry into the facts and outcomes of individual benefits determinations that Congress has foreclosed.12 Believing that the VA was in the “best position” to review its rules and procedures for consistency with its other statutory obligations and to implement any requisite changes, see H. Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 18 of 27 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 Under the statute, eligible veterans are enrolled in VA’s health care system priority13 category (6) and thereby are eligible for any needed medical care with no copayment requirements for treatment of any condition possibly related to their combat service. See 38 C.F.R.§§ 17.36(b)(6); 17.108(e)(2); 17.110(c)(4); 17.111(f)(5). 13Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Rep. 100-963, at 27, Congress required such claims to be brought first before the agency and thereafter appealed through the exclusive mechanisms established by the VJRA. Even absent § 511, plaintiffs' claim would fail because they have not exhausted their administrative remedies required for all VA claimants. Plaintiffs' claim is “exactly the kind of complaint that would best lend itself to a solution developed by the agency rather than imposed upon it by the court.” See J.L. v. Social Sec. Admin., 971 F.2d 260, 270-71 (9th Cir. 1992) (holding similar challenge to procedures for adjudicating social security insurance claims must first be brought before agency under APA), overruled in part on other grounds, Lane v. Pena, 518 U.S. 187 (1996). V. The Court Lacks Jurisdiction to Consider Plaintiffs’ Medical Care Claim This Court likewise lacks jurisdiction to entertain plaintiffs' “medical care claim,” which is no less a challenge to decisions of the Secretary “under a law that affects the provision of benefits . . . to veterans,” 38 U.S.C. § 511(a) than is their challenge to the claims adjudication procedures. See Larrabee, supra (challenge to adequacy of medical care barred by 511(a) even if cloaked as due process claim); Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995) (same). Plaintiffs seek exactly what § 511(a) forbids - review by this Court of the Secretary's determinations that directly affect veterans' eligibility for medical benefits. The crux of plaintiffs' medical care claim appears to be that the VA has not satisfied its alleged obligations under 38 U.S.C. § 1710(e)(1)(D) to provide two years of medical care to returning veterans for illnesses that might have arisen during their combat service. Since VA regulations specifically provide that veterans returning from combat are eligible for free medical care pursuant to §1710(e), 13 plaintiffs must be challenging the Secretary’s decisions about individual eligibility for or entitlement to care. Yet claims involving such fact-specific determinations are “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.” Zuspann v. Brown, 864 F. Supp. 17, 22 (W.D. Tex. 1994), aff’d, 60 F.3d 1156. Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 19 of 27 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 14Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Plaintiffs' sole argument against the preclusive effect of § 511(a) is their bare assertion that veterans “have no recourse” to challenge the Secretary's medical eligibility determinations. Opp. at 23. As an initial matter, this assertion is irrelevant to the existence of jurisdiction, as § 511(a) on its face makes decisions of the Secretary “final and conclusive” unless some other avenue for review is expressly provided. Plaintiffs' contention is also plainly false, since the jurisdiction of the Board of Veterans Appeals “extends to questions of eligibility for hospitalization, outpatient treatment, and . . . other benefits administered by the Veterans Health Administration.” 38 C.F.R. § 20.101(b); see also E. Paralyzed Veterans Ass'n v. Sec'y of Veterans Affairs, 257 F.3d 1352, 1358 (Fed. Cir. 2001) (noting right of appeal). Unable to mount a plausible argument that their claims do not fall within the ambit of § 511, plaintiffs appear to suggest that the APA somehow provides an independent basis for jurisdiction. Opp. at 23 & n. 28. This argument is just wrong. See Califano v. Sanders, 430 U.S. 99 (1977) (APA does not provide independent jurisdictional basis). Second, even without § 511's jurisdictional bar, as explained in Argument III, supra, review would not be available under the APA for the kind of wholesale challenge to the adequacy and timeliness of medical care that plaintiffs seek to mount. See, e.g., Compl. ¶ 3 (complaining of failure to “provide appropriate health care”)(emphasis added); ¶ 10 (“insufficient and overworked staff); ¶ 27 (“failure to promptly and properly treat [veterans]”). See NWF, 497 U.S. at 899. Third, review may not be had where agency actions are "committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This limitation on review extends particularly to situations where, as here, there are “no meaningful standard against which to judge the agency's exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). There can be no doubt that Congress has committed to the Secretary's discretion decisions surrounding the type and appropriateness of medical care, having directed the agency to provide only those medical services “which the Secretary determines to be needed.” 38 U.S.C. § 1710(a)(1). Plaintiffs point to no meaningful standards against which this Court could measure the Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 20 of 27 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 Indeed, Congress crafted § 1710 to ensure that “medical judgment rather than legal14 criteria will determine when care will be provided and the level at which care will be furnished.” H. Rep. No. 104-690, at 4 (1996) (reporting on Veterans' Health Care Eligibility Reform Act of 1996, Pub. L. No. 104-262). Plaintiffs would have this Court fashion “drastic measures” to overhaul the entire VA health care system, see Compl. ¶ 1, guided only by the directive that care be “timely and acceptable in quality.” See 38 U.S.C. § 1705(b)(1); Compl. ¶ 87. Because inquiry into the timeliness and quality of care would require a “complicated balancing of a number of factors which are peculiarly within [the agency's] expertise,” this inquiry is foreclosed by 5 U.S.C. § 701(a)(2). See Lincoln v. Vigil, 508 U.S. 182, 193 (1993), quoting Heckler, 470 U.S. at 831. Whether Congress has earmarked funds for particular medical services or particular15 groups of veterans is a question of law, not of fact, as plaintiffs suggest. See Opp. at 30. Plaintiffs have pointed to no appropriations bill mandating spending on returning combat veterans. Indeed, plaintiffs themselves suggest that “[w]ithout dramatic budget increases extending over the next decade or longer, [the VA] cannot fulfill its statutory responsibilities to provide” medical services, Compl. ¶ 204, effectively conceding that the VA cannot provide all medical services that might be desirable but must instead prioritize medical needs as best it can. This political question is currently being debated, as legislation is currently pending to16 extend from two to five years the period for which combat veterans are eligible for medical care, see S. 383, 110th Cong. (2007), a measure which the VA is on the record supporting. 15Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Secretary's exercise of discretion in this regard.14 Section 1710(a) provides for veteran eligibility for medical care, but it does not create an entitlement to any particular medical service. See E. Paralyzed Veterans, 257 F.3d at 1362. The Secretary is vested with wide discretion to determine when care is necessary, see 38 U.S.C. § 1710(a), and how best to allocate funds in service of the agency’s statutory mandates, see id. § 1710(a)(4); Lincoln, 508 U.S. at 192 (“[T]he 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.”). Accordingly, § 1710 creates no property15 interest protected by the Due Process Clause. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (“[A] a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.”); Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (no property interest without “legitimate claim of entitlement”). To the extent that plaintiffs' contend that two years is simply not enough time for returning veterans to obtain the diagnoses and treatment they need, see Compl. ¶ 92, their quarrel is not with the VA but with Congress. 16 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 21 of 27 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 Indeed, in Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 971-7217 (9 Cir. 2003) - a case relied upon by plaintiffs, Opp. at 20 n.25 - the Court of Appeals “rejectedth the argument that Salerno had been undermined,” as plaintiffs argue, and held it would “‘not reject Salerno’” outside the context of challenges to abortion statutes “‘until a majority of the Supreme Court clearly directs us to do so.’” Hotel & Motel Ass’n, 344 F.3d at 972 (quoting S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461 (9 Cir. 2001)). Unsurprisingly,th another case relied upon by plaintiffs for the false proposition that Salerno has been undermined in this Circuit says no such thing. In Engine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 498 F.3d 1031 (9 Cir. 2007) (cited in Opp. at 20 n.25 as “criticizing Salerno”), the Courtth of Appeals followed Salerno, holding that where a plaintiff brings a facial challenge to an enactment, “Salerno requires the plaintiff to show that there can be no valid application of a particular challenged provision.” 498 F.3d at 1049. 16Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) VI. The Claims Adjudication Process Created by the VJRA is Constitutional a. The Standard for Review of a Facial Challenge to the Constitutionality of an Act of Congress. As this Court noted earlier this year, “[i]n the Ninth Circuit, ‘a facial challenge to the constitutionality of a statute is a question of law.’” Redwood Christian Sch. v. County of Alameda, No. C-01-4282-SC, 2007 WL 214317 (N.D. Cal. January 26, 2007) (Conti, J.) (quoting U.S. v. Bynum, 327 F.3d 986, 990 (9 Cir. 2003)). That is because “‘[a] facial challenge to ath legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.’” Bynum, 327 F.3d at 990 (quoting U.S. v. Salerno, 481 U.S. 739, 745 (1987)); see also Gonzales v. Carhart, 127 S.Ct. 1610, 1639 (2007) (“Broad challenges of this type impose ‘a heavy burden’ upon the parties maintaining the suit.”) (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991))). Plaintiffs criticize the Salerno standard, find “murkiness” in the distinction between facial and as applied challenges, and argue that their claims concerning the VJRA “fall on the facial end of the constitutional spectrum” because they are “systemic.” Opp. at 20-21. Whatever murkiness plaintiffs and the law professors whom they cite may discern, however, the Salerno standard remains controlling in this Circuit. See Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700, 708 (9 Cir. 2007) (relying on Bynum and Salerno). th 17 Plaintiffs ignore controlling authority when they erroneously suggest that the due process inquiry is “inherently fact-intensive,” which cannot be decided on a motion to dismiss. See Opp. at 25. The “heavy burden” imposed on a party brining a facial challenge to a statute represents Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 22 of 27 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 At least one Court has suggested that section 511 divests district courts of jurisdiction to18 entertain even facial challenges to the constitutionality of statutes affecting veterans benefits since under the VJRA such claims can be asserted in an individual benefit application and decided, ultimately, by a court. Hall v. U.S. Dept. of Veterans’ Affairs, 85 F.3d 532 (11 Cir.th 1996). 17Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) the high legal threshold for stating a claim of facial unconstitutionality, see Bynum, 327 F.3d at 990, not as plaintiffs seem to suggest, a factual burden of proof. See Opp. at 25 n.30. Assuming that this Court has jurisdiction, plaintiffs’ due process claim can and should be dismissed on the18 pleadings because the facts which they allege, even if true, fail to establish a due process violation as a matter of law. In United States v. Phelps, 955 F.2d 1258, 1266 (9th Cir. 1992) this Circuit held that Mathews v. Eldridge balancing test is “legal in nature and does not require factual determinations.” Cf. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (“[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.”). See also Nat. Ass’n Radiation Survivors v. Derwinski, 994 F.2d 583, 587 (9 Cir. 1993) (reviewingth district court conclusions regarding due process de novo). b. The VA Claims Adjudication Process is Constitutional In their Opposition, Plaintiffs never attempt to apply the Mathews v. Eldridge balancing test to the VA claims adjudication process as a whole to show that it does not provide adequate process. Instead, plaintiffs first engage in semantics regarding the alleged “adversarial” nature of the VA claims adjudication process, Opp. at 26, but plaintiffs cannot seriously dispute that the initial, regional office step of the claims process is not, in any sense, adversarial. There is no on- the-record hearing or any other trappings of a trial procedure, but instead a simple in person interview process with a VA employee, who is required to “assist [the] claimant” as part of his official duties, 38 C.F.R. § 3.103(a). No court has ever suggested that this informal claims adjudication procedure does not satisfy the requirements of the Due Process Clause, while several courts have affirmed various aspects of the process against due process challenges. See e.g. Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (NARS); Cleland v. Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 23 of 27 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 Plaintiffs seek to dismiss all pre-VJRA precedent as irrelevant due to the changes19 enacted by Congress in the VJRA. However, as noted, changes resulting in the new section 511 were intended to broaden that provision’s limitation on judicial review and hence cases rejecting claims under the pre-VJRA statute are fully consistent with the new law and hence relevant precedents. And decisions such as NARS , Devine and Moore, to the extent that they were decided on the Due Process clause, are entirely unaffected by the VJRA. 18Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) Devine, 616 F.2d 1080 (9 Cir. 1980); Moore v. Johnson, 582 F.2d 1228 (9 Cir. 1978). th th 19 Generally, “[p]rocedural due process requires adequate notice and an opportunity to be heard,” Kirk v. INS, 927 F.2d 1106, 1107 (9 Cir. 1991), which undeniably provided at the VA’sth administrative level. In applying the Matthews balancing test, courts have consistently recognized the value to claimants of the informal VA claims adjudication system. “All would get less if invariably the complaints of the many required elaborate hearings with all the trappings that only lawyers and judges can fully appreciate.” Moore, 582 F.2d at 1234. This conclusion is not affected by whether the particular procedures that plaintiff argues must be provided for veterans are considered individually or in the “holistic” manner plaintiffs propose. Opp. at 27-28. Other than arguing about the prospect of delay in certain cases and identifying one case where a claimant was unable to call a doctor as a witness to support his claim, id. at 28:6-12, plaintiff make no attempt to articulate why “no set of circumstances exists under which the Act would be valid.” Bynum, 327 F.3d at 990. In addition to this initial non-adversarial opportunity to be heard, the claimant has, since the enactment of the VJRA, the additional right of judicial review by the CAVC and ultimately the Federal Circuit. Unlike the administrative level, this appellate forum is “adversarial” in the sense that claimants have the right to be represented by counsel and benefit from the traditional procedures of an appellate tribunal. The decision in Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), cited by plaintiffs, recognizes exactly this distinction, noting that “[t]he veterans’ benefits system remains a non-adversarial system when cases are pending before the Veterans Administration. However, the Court of Appeals for Veterans Claims’ proceedings are not non- Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 24 of 27 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 Applicants for benefits have fewer due process rights than beneficiaries, but the VA20 system provides adequate process for both classes. Plaintiffs profess confusion about whether defendants assert that the VJRA expanded or21 restricted veterans’ procedural protections. Opp. at 26-27. There is no ground for confusion. The VJRA, for the first time, provided a judicial forum for claimants to challenge the VA’s denial of a claim - a substantial increase in the rights of veterans. Simultaneously, however, Congress sought to foreclose cases such as this - an end run around the elaborate claims adjudication process through district court challenges to actions by the VA that in any way “affect[] the provision of benefits.” 19Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) adversarial.” Id. at 1355. Thus, with the enactment of the VJRA in 1988, the procedural20 protections available to claimants have been substantially expanded, as the administrative system has been complemented with the right to seek judicial review in the CAVC and the Federal Circuit. If the prior administrative process met the requirements of the Due Process Clause, the21 same system with the addition of a right to judicial review at the later stages is even more clearly constitutional. Plaintiffs offer no coherent argument for why their challenge to the limited restrictions on the right to counsel contained in the current statute are not foreclosed by NARS, supra, and numerous other decisions. It is not sufficient to assert, as plaintiffs do, that those decisions did not consider the limitation on counsel in the context of a broader program, Opp. at 29, since even a cursory review of NARS demonstrates that the Court carefully reviewed the entire process in reaching the conclusion that the restriction was constitutional. See 473 U.S. at 309-12; see also Brief of Appellee at 17-18, 25-26, NARS, 473 U.S. 305 (No. 84-571), 1985 WL 670000 (arguing that entire context of adjudication-- including statute governing BVA and adequacy of discovery tools--contributed to due process violation). In fact, in NARS, the Supreme Court explicitly considered the lack of formal trial procedures about which plaintiffs’ complain, as a factor militating against due process concerns. 473 U.S. at 333. Finally, much of plaintiffs’ argument about the alleged inadequacy of claimants’ rights at various stages of the process is simply wrong as a review of the relevant statutes and regulations demonstrates. So, for example, plaintiffs assertions about the powers of the CAVC are simply wrong; the CAVC does have power to enforce its own decisions, both through the routine power Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 25 of 27 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 Aside from this Court’s lack of jurisdiction over CAVC, plaintiffs grossly misstate the22 expediency with which the CAVC resolves its cases. In their Opposition (at n. 23) plaintiffs state that it takes 1286 days to decide an appeal. The reality, however, is quite different. The median time for CAVC to resolve each case in 2006 was 11.5 months. (http://www.vetapp.gov/annual_report/). In comparison, the median time for case disposition for all Article III U.S. courts of appeals in 2006 was 12.2 months. ttp://www.uscourts.gov/cgi-bin/cmsa2006.pl, (click on ‘National Totals,’ p. 2.). Plaintiffs also grossly misstate the number of cases at the CAVC that are in a “backlog.” It is undisputed that only approximately 1000 of the approximately 6000 cases on the Court’s docket are fully briefed and awaiting decision. See testimony of CAVC Chief Judge at November 7, 2007 hearing before the U.S. Senate Committee on Veterans Affairs. See http://veterans.senate.gov. 20Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) to reverse and remand to the VA as well as through the more extraordinary remedies, such as mandamus and contempt. See pp. 4-5, supra. Nor is it accurate to assert that there is a “total absence of any discovery procedures” at the regional office level, since claimants do have a right to obtain all documents relevant to their claim that are in the custody of the VA, and the VA will attempt to obtain additional documents relevant to their claim. Id. at 4. VII. This Court Lacks Jurisdiction Over the U.S. Court of Appeals for Veterans Claims Finally, plaintiffs’ claims against the U.S. Court of Appeals for Veterans’ Claims (“CAVC”) fail for an independent, but threshold reason: the only waiver of sovereign immunity available is the APA, but the APA, by definition, excludes “the courts of the United States.” See 5 U.S.C. § 551(1)(B). Cf. Abbs v. Principi, 237 F.3d 1342, 1347-49 (Fed. Cir 2001) (“Congress viewed the Veterans Court - and courts generally - as separate and distinct from the ‘United States’ or its agencies”); Harpole v. U.S., No. A00-176CV, 2000 U.S. Dist. LEXIS 17697, at *7-*9 (D. Alaska Nov. 2, 2000). Indeed, upon its creation, Congress established the CAVC (formerly the Court of Veterans Appeals) to be an "independent judicial review of the Board's final decisions." Bates v. Nicholson, 398 F.3d 1355, 1364 (Fed. Cir. 2005). Thus, CAVC is "a judicial body independent of the Secretary" as distinct from the BVA, which is "an agent of the Secretary." Jackson v. Principi, 265 F.3d 1366, 1370 (Fed. Cir. 2001). See also 38 U.S.C. § 7251. Therefore, plaintiffs have not stated a cognizable claim against the CAVC. 22 Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 26 of 27 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 21Reply Memorandum in Support of Motion to Dismiss ( No. C 07-3758-SC) CONCLUSION Wherefore, for the reasons set forth herein as well as in defendants’ Motion to Dismiss, plaintiffs’ Complaint should be dismissed with prejudice. Dated November 30, 2007 Respectfully Submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director /s/ Daniel Bensing DANIEL BENSING D.C. Bar # 334268 STEVEN Y. BRESSLER D.C. Bar #482492 KYLE R. FREENY California Bar #247857 Attorneys, U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Counsel for Defendants Case 3:07-cv-03758-SC Document 55 Filed 11/30/2007 Page 27 of 27