August 18, 2019

Don’t Delay, Submit VA Form 21a Today to Practice Before the Veterans’ Administration

flagThe Veterans’ Administration requires all attorneys who assist claimants in the preparation, presentation, and prosecution of claims for benefits to be accredited by the VA per 38 C.F.R. § 14.627(a). VA Form 21a is used to achieve accreditation, and it must be submitted prior to completing the second accreditation requirement, a three-hour CLE course regarding representation before the veterans’ administration, basic eligibility, claims and appeal procedures, and more.

Colorado Lawyers for Colorado Veterans and CBA-CLE will host a 3-hour accreditation course on January 9, 2015, presented by Michael Shea, Esq. This 3-hour course satisfies the VA requirement for CLE. It also satisfies VA continuing education requirements for attorneys who are already accredited.

Attorneys wishing to obtain Veterans’ Administration accreditation must submit VA Form 21a at least 90 days prior to taking the CLE course, as it can take up to 90 days for the VA to review the form and accredit the attorney. VA Form 21a can be downloaded here, and may be submitted via facsimile or as a PDF attachment to an email sent to ogcaccreditationmailbox@va.gov.

For more information on accreditation requirements, click here, and for more information on CLE’s “Practicing Before the Veterans’ Administration” class in 2015, click here.

 

Tenth Circuit: Court Did Not Have Subject Matter Jurisdiction Over Plaintiff’s Claims Against Federal Officers

The Tenth Circuit Court of Appeals published its opinion in Ingram v. Faruque on Friday, September 6, 2013.

Delbert Ingram is an employee at the Oklahoma City Department of Veterans Affairs Medical Center (“VAMC”). At the time of the incidents resulting in this appeal, VAMC police received a report from one of Mr. Ingram’s coworkers stating that Mr. Ingram had said he had been thinking about killing his supervisor.  Mr. Ingram was taken to an emergency room. An emergency room physician found Mr. Ingram to be was sufficiently ill “that immediate emergency action [was] necessary.” When Mr. Ingram attempted to leave the emergency room, Lt. Stevenson informed him that, although he was not under arrest, he was not free to leave the emergency room. Mr. Ingram stated that Lt. Stevenson said this with his hand on his firearm, and that after making this statement, Lt. Stevenson shut and locked the door to the padded isolation room. After conversations with physicians and being transported to a psychiatric ward, Mr. Ingram was held in the ward for over twenty-four hours before being medically cleared and released.

Mr. Ingram sued Defendants in their individual capacities claiming they violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by holding him in the psychiatric ward without his consent. Defendants filed motions to dismiss, arguing that, among other things, the district court lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act (“FTCA”) provided the sole remedy for Mr. Ingram’s claims, and that the court therefore should not authorize a remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In Bivens, the U.S. Supreme Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.

The district court agreed and granted Defendants’ motions to dismiss. Specifically, the court concluded that Mr. Ingram had a remedy available under 38 U.S.C. § 7316 (“VA Immunity Statute”), which applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the Veteran’s Administration (“VA”). Because of the availability of that remedy, the district court concluded Mr. Ingram did not have a cause of action under Bivens. Mr. Ingram appealed.

The Tenth Circuit held that the text of the VA Immunity Statute created an exclusive remedy that precluded a Bivens claim. The court also concluded that Mr. Ingram’s claims fell within the scope of the VA Immunity Statute, such that he was precluded from bringing a cause of action under Bivens. Because Mr. Ingram had an adequate alternative remedy available through the VA Immunity Statute and the FTCA, it was not appropriate to authorize a Bivens remedy for Mr. Ingram. Accordingly, the Tenth Circuit held the district court did not err in ruling that it lacked subject matter jurisdiction over Mr. Ingram’s claims.

AFFIRMED.

U.S. Supreme Court Denies Review of Veterans’ Benefits Petition

On Monday, January 7, 2013, the Supreme Court of the United States denied a petition for review of a May Ninth Circuit Court of Appeals decision regarding the processing of medical benefits for veterans. The denial by the Court effectively affirms the Ninth Circuit’s decision that the judicial branch lacks authority to decide such appeals.

The case was originally brought by veterans’ advocacy groups in 2007.  After a bench trial in 2008, United States District Judge Samuel Conti concluded that the court did not have jurisdiction over the appeals, citing the Veterans’ Judicial Review Act and noting that the court lacked power to remedy the wrongs against veterans documented by “voluminous” evidentiary submissions to the court. Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Ca. 2008). 

A panel of the Ninth Circuit overturned that decision in 2011, ordering that, because of the serious nature of the claims, veterans groups could ask the court to order changes in the system. Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011). Upon request for a new hearing before a larger panel, however, that ruling was reversed.

The full panel of the Ninth Circuit determined that it did not have jurisdiction to hear the appeal.

[W]e lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. . . . As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.

Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012). In September, the plaintiff veterans organizations submitted a petition for writ of certiorari to the United States Supreme Court, asking the Court to rule on whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in the VA’s provision of mental health care and death and disability compensation. That petition was denied on Monday, January 7, 2013. Plaintiff group Veterans for Common Sense issued a statement in response to the denial, stating in part

We are deeply disappointed the Court did not hear the urgent plea of suicidal Veterans who face delays of months, and often years, seeking VA assistance.  Although significant improvements were made in some areas within VA, such as a suicide hotline set up after our lawsuit that rescued 23,000 distraught Veterans, the nation’s second largest department remains in deep crisis.

The Colorado Bar Association, in conjunction with several bar associations across the state, has established Colorado Lawyers for Colorado Veterans, a service where veterans can meet with an attorney regarding their legal issues free of charge. Attorneys wishing to assist with this program can contact Carolyn Gravit.

Eligibility for VA benefits and appeals processes will be discussed at the January 31, 2013 program, “Fundamentals of Practicing Before the Veterans’ Administration 2013.” This three-hour program will take place at 9 a.m. at the CLE offices. It qualifies for the VA three-hour training requirement for attorneys who wish to represent veterans before the Veterans’ Administration. Attorneys can attend for a significantly reduced rate by taking a pro bono case. Click here for registration information.

CLE Program: Fundamentals of Practicing Before the Veterans’ Administration 2013

This CLE presentation will take place on Thursday, January 31, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.