A Recent Case from the 9th Circuit Court of Appeals Highlights That the Language Used in Your Veterans Benefits Appeal, or Any Appeal, Matters.

In July of this year, the 9th Circuit Court of Appeals decided, in a published opinion, the case of Tunac v. United States, No. 17-15021 (9th Cir. 2018).  In this opinion, the 9th Circuit reaffirmed two things.  First, Article III federal courts (essentially the courts you and I understand to be the everyday federal courts) do not have jurisdiction to a decide veteran’s claim regarding “whether the VA unreasonably delayed medical care . . . as a scheduling matter [even if negligent], because such a claim requires a review of a benefits decision.”[1]  This is because such power is vested solely in the Court of Appeals for Veterans Claims.[2]  Second, however, Article III federal courts do have jurisdiction to review claims of VA medical negligence.[3]

Wait, What?

So, how are Article III federal courts able to hold the VA responsible for medical negligence, but cannot hold them responsible for negligently failing to get the Veteran medical care?

It’s as Complicated as it Sounds.

The Veterans Judicial Review Act established the United States Court of Appeals for Veterans Claims.  That act has been determined to

“preclude [Article III courts’] jurisdiction over a claim if it requires the district court to review VA decisions that relate to benefits decisions, including any decision made by the Secretary in the course of making benefits determinations. . . . This preclusion extends not only to cases where adjudicating veterans claims requires the district court to determine whether the VA acted properly in handling a veteran’s request for benefits, but also to those decisions that may affect such cases.”[4]

This highlighted language, when “read broadly, could include [VA] decisions causing delay[s] in treatment.”[5]  Put simply – Article III federal courts cannot hear cases alleging negligence in scheduling medical care.  This is because

“there is no way for [a] district court to resolve whether the VA acted in a timely and effective manner in regard to the provision of mental health care without evaluating the circumstances of individual veterans and their requests for treatment and determining whether the VA handled those requests properly. We therefore lack jurisdiction to consider . . . various claims for relief related to the VA’s provision of . . . health care, including . . . challenge[s] to the lack of procedures by which veterans may appeal the VA’s . . . scheduling decisions.”[6]  However, when a medical professional at the VA commits medical negligence (such as leaving a sponge in a person after surgery), Article III courts can step in.[7]

OK, So How Does the Wording in the Appeal Matter?

In Tunac, the VA did not provide timely treatment to a Veteran who was experiencing kidney failure and who died as a result of the VA’s failure to schedule that treatment.[8]  The wife of a deceased Veteran brought a claim to the Article III courts asserting two things:

“For the first count, the complaint alleges that the VA and its employees caused [] Tunac’s death by failing to provide him with ‘adequate follow-up care and treatment to monitor Randy’s condition and identify any potential relapses or adverse changes to his health[.]’

. . . .

For the second count, the complaint alleges that the employees and the VA breached their duty to Randy Tunac ‘to provide him with timely, quality healthcare.’”[9]

As to the first count, the Court held they had jurisdiction.[10]  As to the second, the Court held it did not.[11]

What is the Difference?

So, what is the difference between failing to provide “adequate follow-up care and treatment” and failing to provide “timely, quality healthcare”?  While there may not be a good answer as to what the difference is, it appears it comes down to the word “scheduling.”  As discussed by the 9th Circuit:

“by failing to provide [Tunac] with adequate follow-up care and treatment to monitor [his] condition and identify any potential relapses or adverse changes to his health . . . it is reasonable to read this . . . [as] negligence by medical professionals, as generally they are responsible for monitoring a patient’s condition and providing follow-up care and treatment. To the extent these allegations relate to claims of medical negligence on the part of medical professionals, they do not relate to benefits decisions . . ..

. . . .

We do not, however, have jurisdiction over the complaint’s allegations that [] Tunac’s death was caused by the VA’s failure ‘to schedule Randy for immediate (or even timely) treatment after the deterioration of his condition’ or its failure ‘to schedule Randy for immediate dialysis after the results of his kidney biopsy in December 2009,’ and similar allegations relating to the negligence in scheduling appointments and treatment.”[12]

In English, Please.

Put simply, a review of the italicized language shows that alleging virtually the same thing but using different words can sometimes be what it takes.  Here, the difference was alleging a failure to act (“provide treatment”) vs. a failure to schedule to act (“schedule immediate dialysis”).  In the first, the Court had jurisdiction.  In the second, it did not.  Accordingly, the language used in an appeal matters – even for tiny distinctions.  This is because, though the Court’s distinctions may make little sense, the attorney (or pro se litigant) must thoroughly understand the line of reasoning so that it can be followed.  A failure to do so can get issues dismissed.  And that is exactly what happened to Tunac.

If your looking for an experienced appellate counsel, feel free to give my office a call.  All initial consultations are free of charge and I’d welcome the opportunity to discuss the specifics of your case.


[1] Tunac, No. 17-15021, slip op. at 9.

[2] 38 U.S.C. §§ 7251, 7261.

[3] Tunac, No. 17-15021, slip op. at 10.

[4] Veterans for Common Sense (VCS) v. Shinseki, 678 F.3d 1013, 1025-26 (9th Cir. 2012) (internal quotations and citations omitted) (emphasis added).

[5] Tunac, No. 17-15021, slip op. at 6.

[6] VCS, 678 F.3d at 1028 (emphasis added).

[7] Tunac, No. 17-15021, slip op. at 11.

[8] Tunac, No. 17-15021, slip op. at 4-5.

[9] Tunac, No. 17-15021, slip op. at 6.

[10] Tunac, No. 17-15021, slip op. at 14-15.

[11] Tunac, No. 17-15021, slip op. at 15.

[12] Tunac, No. 17-15021, slip op. at 15 (emphasis added).


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