The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

May/June 2004
Veterans Benefits Update
   
 

VVA's Broad-impact Litigation

BY LEONARD J. SELFON, DIRECTOR

VVA has engaged in broad-impact litigation since the beginnings of our organization. Here is an update on two pending cases.

VVA and Strickland v. Principi

Late last year, Rep. Ted Strickland (D-Ohio) approached VVA concerning the VA's shift in policy from providing outreach to veterans and their dependents with respect to VA health care benefits and services to discontinuing active outreach activities. Specifically, Rep. Strickland proposed bringing a lawsuit in federal court to compel the VA to resume its outreach program.

Federal law charges the VA with an "affirmative duty" to seek out eligible veterans and their family members and to provide them with information and assistance to insure that they apply for all available VA benefits and services. While the VA has no discretion to curtail its outreach program, that is exactly what happened. In July 2002, the VA issued a directive to all VA regional health care networks "to insure that no marketing activities to enroll new veterans [will] occur," regardless of local capacity to accommodate more enrollees. VA employees were directed to refrain from actively recruiting more people into the VA health care system and to provide only general information.

While veterans of all eras are adversely affected by the reduction in VA outreach, the newest generation of veteransthose who have served in the war on terrorism and Operations Enduring Freedom and Iraqi Freedomwill suffer greatly. Our investigations have revealed that many wounded returning service members who have been, or will shortly be, separated from service due to injuries, have gone for months without any information from the VA concerning benefits and services to which they are entitled.

In January 2004, VVA and Rep. Strickland, through our pro bono attorneys at
Georgetown University Law Center's Institute for Public Representation, filed a complaint in the U.S. District Court for the District of Columbia for declaratory and injunctive relief. The lawsuit is designed to have the court declare that the VA is in violation of its statutory outreach obligations and to order the rescission of the July 2002 memorandum and the reinstatement of full VA outreach.

In March 2004, the Department of Justice, which represents the VA, filed a motion to
dismiss the lawsuit, suddenly producing a February 2004 memorandum from the
Undersecretary of Health for Operations and Management to the VA's regional
medical directors, which purportedly clarified the July 2002 memo. The VA now calls
the directive to cease outreach as a limitation on "marketing" for the specific purpose
of enrolling new patients. The memo also claims that the VA spent $36 million on
outreach in FY2003, $23 million of which went to direct outreach to veterans.

The Undersecretary requested that regional medical directors insure compliance with
the outreach statute, but admonished them to balance outreach activities "with
available capacity and resources." She did not, however, rescind the July 2002 memo. In its motion, the Justice Department argued that the court does not have subject matter jurisdiction over the VA's actions because the manner and scope of health care outreach are committed to the Secretary's discretion by law and that the plaintiffs' challenge has been mooted by all of the outreach that the VA is doing.

In April 2004, VVA and Rep. Strickland filed an opposition to the government's motion to dismiss as well as a cross-motion for summary judgment, which argued that: (1) the scope of VA health care outreach is explicitly stated in the statute and the Secretary's effectuation of that mandate is not discretionary; (2) the February 2004 memo does not moot the lawsuit; and (3) plaintiffs' allegations of VA noncompliance with the statute must be assumed as true for purposes of considering the motion to dismiss. At press time, we are awaiting the judge's decision on the motions.

From a practical standpoint, the lawsuit is having a definite impact on the VA Since VVA and Rep. Strickland filed the action, there has been a flurry of VA outreach activity, including the February 2004 memo, a memo from the Secretary to all VA managers concerning the VA's commitment to outreach, and a letter to be sent to all Afghanistan and Iraq military returnees about VA benefits and health care, as well as a just recent video public service announcement.

Boatswain v. Ashcroft

In 2003, VVA filed an amicus (friend of the court) brief in the U.S. Court of Appeals for
the Second Circuit (Nolan v. Holmes), challenging a District Court's decision to overturn a criminally convicted, noncitizen Vietnam veteran's Immigration and Naturalization Service (INS) deportation order based on his honorable military service. The court found for the government.

Boatswain is a Vietnam veteran in a similar situation. In April 2004, VVA, along with the National Veterans Legal Services Program and Black Veterans for Social Justice, filed an amicus brief in the Second Circuit in Boatswain's appeal of the district court's affirmance of his INS deportation order. The brief focused on the government's long-standing policy of inducing immigrants to serve in war and rewarding them with more lenient naturalization procedures, and the statutory arguments of Boatswain's naturalization claim.

Both the Second Circuit in the Nolan appeal and the District Court in the Boatswain case held that Section 329 of the Immigration and Nationality Act, which concerns the more liberal procedures under which noncitizen veterans who serve during times of conflict may naturalize, is ambiguous with respect to whether honorable wartime military service can serve as evidence of good moral character where there has been a subsequent criminal conviction. The courts found that the statute is ambiguous as to whether such circumstances may be considered, and, under principles of statutory construction, granted deference to the INS's decision to deport.

VVA's brief argues that the statute is not ambiguous, that legislative history demonstrates Congress' desire to reward noncitizen veterans' military service, and that public policy, especially in these times, demands a liberal construction of the law in favor of the veteran. We hope to persuade the court not to interpret Section 329 as the government wants (making any minor offense an automatic bar to a noncitizen veteran's naturalization) and instead to interpret it in favor of Boatswain and permit him to naturalize under the section.

VVA is represented in this matter by the New York law firm Cleary Gottleib on a pro
bono
basis.

   

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