Class
Act Lawsuit
Schism and
Reinlie v. U.S.
Federal
Appeals Court - Washington D.C.
6 March
2002
Comments
This is a collection of comments gathered from Internet web pages and e-mails in reference to the Class Act Lawsuit which was heard in the Federal Appeals Court on 6 March 2002. I have no particular reason for building this web page except to preserve a little piece of history that may otherwise be lost. The comments are arranged by date and time.
Date: Wed,
6 Mar 2002 17:22:08 -0500
From: "Alperson, Phil" Phil.Alperson@mail.house.gov
Hello.
I have just returned from the Federal Appeals Court across the
street from the White House where Col. Bud Day argued the case
for the Class Act Group before the full Court.
Please understand that I am not a lawyer. Nonetheless, here are
my impressions of the arguments presented by Col. Day (on behalf
of Schism and Reinlie) and by Justice and Defense Department
attorneys (on behalf of the United States of America).
The hour-long debate revolved around these basic issues: is the
U.S. government accountable for promises of fully-paid lifetime
military health care? Did the fact that the U.S. government did
provide such health care for many years until 1995 constitute a
legal acknowledgement of a promise? In short, was there a
contract between the United States and recruits to provide
fully-paid lifetime military health care until June 7, 1956?
The 11-judge panel vigorously engaged the attorneys with many
questions. There was no argument that promises were often made by
recruiters and through recruiting literature. The question was
whether the United States was legally bound to honor any such
promises.
My impression is that the judges put the U.S. attornies on the
defensive far more than Col. Day. The attorneys for the United
States put themselves in the unenviable position of admitting
that promises were made that, legally-speaking, did not have to
be honored because neither the Congress nor the Executive Branch
ever put such promises into law or regulation. Col. Day presented
evidence to the contrary, but none of that evidence was in the
form of actual statutes or regulations. Even if the Government
attorneys have the law on their side (a point which I am not
qualifies to discuss), that is a morally indefensible position to
take.
Col. Day also argued that lifetime health care was indeed
provided by the U.S. Government for many years, and that the
Congress indeed authorized ebough fuinds every year for that
putrpose until 1995. This, he argued, was a fulfillment of a
contract by the Government. The Government attorneys argued that
this was no such thing, again because no statute or regulation
ever constituiteda contractual agreement.
Congressman Shows has argued all along that a promise made by a
recruiter representing the government to convince citizens to
serve a military career is not the same as a promise made by a
salesman trying to sell you a product. When you buy a car (no
offense intended to car salesmen out there), you still have to
kick the tires and check under the hood to make sure the car is
as good as the salesman tells you. But when you join the service,
you should not start out mistrusting the government that
recruited you.
I do not know when the Appeals Court will rule on this case, or
if their decision will be further appealed to the U.S. Supreme
Court. I can say that Col. Day did his clients proud today.
Thanks, everyone.
PHIL ALPERSON
Legislative Director
Rep. Ronnie Shows (D-Mississippi 4th)
1408 Longworth House Office Bldg.
Washington, D.C. 20515
http://www.house.gov/shows/
Gov't Appeals Medical
Benefits Rule
The Associated Press
Wednesday, March 6, 2002; 5:30 PM
WASHINGTON (AP)– The government appealed on Wednesday a
court ruling that retired veterans who signed up with a promise
of lifetime free medical care in return for a 20-year hitch are
entitled to receive it.
The U.S. Court of Appeals for the Federal Circuit heard oral
arguments from government lawyers who said military recruiters
never were authorized to bind the government to such an expense.
"A promise is a promise" was the retort from retired
Air Force Col. George "Bud" Day, who served in World
War II as a Marine and Korea and Vietnam with the Air Force
– in Vietnam he was a prisoner-of-war, escaped and was
recaptured – and is representing the veterans.
Day said legislation and recruiting manuals from as early as to
1799 set out lifetime health care as a military recruiting tool
for the military.
Last year, a three-member panel of the 11-judge appellate court
overturned a lower court's ruling for the government and ordered
the case back to the trial judge in Florida to award damages.
The Justice Department appealed to the full panel, whose chief
judge, H. Robert Mayer, headed the first panel.
Justice Department lawyer E. Roy Hawkens cited other regulations
that require Congress expressly to authorize the money before
entitlements are promised. Otherwise, Hawkens said, officials
could "create a multibillion-dollar health-care system"
before any funding was set aside for it.
The court was expected to rule as early as next month, Day and
other court officials said. After the arguments and a short
question-and-answer session before a crowd of military retirees,
the judges left the bench after Mayer told their audience:
"We salute you for your service."
In his opinion for the three-judge panel last year, Mayer wrote:
"The retirees entered active duty in the armed forces on the
good faith belief that the government would fulfill its
promises."
At issue is whether the government broke a contract with the
nation's military retirees when it stopped providing them free
health care at age 65.
Currently, 20-year retirees are entitled to free care at military
facilities, on a space-available basis, or they can join an
HMO-type military health-care system known as TRICARE.
At age 65, however, retirees are forced into the Medicare system,
which generally does not cover prescription drugs and requires
about a $50 monthly premium.
Day said the suit could affect as many as 1.5 million retirees
and their dependents.
© 2002 The Associated Press
Date: Wed, 6 Mar 2002
18:14:10 -0500
From: "David Perkins" daveylee@daveylee.com
Floyd:
Just got home from the hearing. I am so glad that I went as there
was a good crowd there... but it should have been much better.
The main courtroom was full to overflowing and a room of the same
size was set up across the hall with a large screen projection
system so we didn't miss anything in the overflow side...
The Press showed up, but not in the quantity I would have hoped
for. There were some cameras and I'd guess living Medal of Honor
winners attract that. The judges were obviously "wowed"
as the president of the court made some powerful closing remarks
as to Col. Bud Day's service to his country and being a living
Medal winner.
I do believe that some of the judges were quite favorable and I
say that because of the way they "beat up" on the
Government's lawyer with questions such as... Did he think that
young military persons should have questioned their C.O.'s
authority to make the promise of lifetime medical care and did he
have Congress's backing financially to pay for it?! Just little
questions like that make me think they were not favorable to the
Govt's arguments. And, since the Gov't has been paying for our
care for so long... and to summarily quit, seemed to rub some of
the judges really in the wrong way.
There were some tough questions to Col. Day regarding the rules
and regulations that were in effect during the time that these
promises of lifetime medical care were being made... like the law
said that care was available with conditions.. such as
availability, etc... and then there were recruiters that said
that the care would be "Un-conditional." This was an
issue that consumed quite a bit of time. And, the same judge that
hammered Col. Day with that turned around later and was really
nice and supportive when the Govt. lawyer started being haughty
and all mighty. So, in all I feel like we will prevail.
I did have the opportunity to meet Col. Bud Day and I also met
Jack Hollingsworth. It was certainly good to meet both of these
gents.
Floyd, I can tell you this. The government made it clear. This is
ALL about money. Nothing else. And, the press members who were
there heard that clear as a bell. As we were leaving, and taking
the elevator down to the main floor, several of us were
commenting how we felt that the court favored our side and one
young lady asked us precisely why we felt that way. We
explained... and it turns out that she is a reporter for the
Associated Press. We chatted with her for a while and got her to
understand our plight... mostly by asking her how often she asked
her boss if he had the authority to pay her a rasie (assuming he
offered her one) etc... and she began to shake her head up &
down in understanding. She said that she'd never given any
thought to anything like that and was sure that no military
person would ever question their commander or re-enlistment
office personnel about anything like that. Especially not the
young ones...
Bottom line, I say it's time to put pen to paper or keys to the
screen and keep those letters going to our elected officials so
they know we're here, what we did for our country, (big or small)
and that future generations of military personnel will look at
these decisions and base their career plans accordingly. And, do
our elected officials want a whimpy, do nothing, military? I hope
not! We need a strong military so we can continue to at least
have the freedom to "disagree" with our government.
These are things that we served for and what our current
generation of military elite are taking care of in "distant
lands." It's only with a strong military that we'll keep it
in distant lands... and great benefits are what bring in the
better people. And, golly gee, lifetime medical care just happens
to be a great "benefit" worth serving for!
Just wanted to get this out to you promptly. Sure am sorry you
were not able to make it up our way. Would have been a pleasure
to meet you too. I am sure we will meet someday before long.
Have a Great week... and take care of that back,
Dave Perkins, PO1--USN--RET--1964 --1984
MILITARY RETIREE GRASS ROOTS GROUP (MRGRG) FREDERICK, MARYLAND
KEEPING THE BROKEN PROMISE ALIVE
Date: Wed, 06 Mar 2002
18:56:27 -0600
From: Carol E Peterson cpp34870@centurytel.net
http://www.lasvegassun.com/sunbin/stories/bw-exec/2002/mar/06/030600355.html
Veterans Argue To Protect Benefits
WASHINGTON- Lawyers for the government argued in court Wednesday
that military recruiters never were authorized to promise a
lifetime of free medical care to enlistees who agreed to sign up
for a 20-year hitch.
Veterans led by retired Air Force Col. George "Bud" Day
told the appellate panel they're determined to protect benefits
they assumed they had earned.
"A promise is a promise" said Day, who served in World
War II as a Marine and Korea and Vietnam with the Air Force. In
Vietnam he was a prisoner-of-war, escaped and was recaptured.
Day said legislation and recruiting manuals from as early as 1799
set out lifetime health care as a military recruiting tool for
the military.
The government had won its case based on that argument earlier
before a lower federal court. Last year, a three-member panel of
the 11-judge appellate court overturned a lower court's ruling
for the government and ordered the case back to a trial judge in
Florida to award damages.
But then, the Department of Justice appealed to the full
appellate panel, whose chief judge, H. Robert Mayer, headed the
first panel.
Justice Department lawyer E. Roy Hawkens cited other regulations
that require Congress expressly to authorize the money before
entitlements are promised.
Otherwise, he said, officials could "create a
multibillion-dollar health-care system" before any funding
was set aside for it.
The court is expected to rule as early as next month, Day and
other court officials said. After the arguments and a short
question-and-answer session before a crowd of military retirees,
the judges left the bench after Mayer told their audience:
"We salute you for your service."
In his opinion for the three-judge panel last year, Mayer wrote:
"The retirees entered active duty in the armed forces on the
good faith belief that the government would fulfill its
promises."
At issue is whether the government broke a contract with the
nation's military retirees when it stopped providing them free
health care at age 65.
Currently, 20-year retirees are entitled to free care at military
facilities, on a space-available basis, or they can join an
HMO-type military health-care system known as TRICARE.
At age 65, however, retirees are forced into the Medicare system,
which generally does not cover prescription drugs and requires
about a $50 monthly premium.
Day said the suit could affect as many as 1.5 million retirees
and their dependents.
Date: Wed, 06 Mar 2002
18:56:54 -0600
From: Carol E Peterson cpp34870@centurytel.net
http://www.lasvegassun.com/sunbin/stories/bw-exec/2002/mar/06/030600188.html
Gov't Appeals Medical Benefits Rule
WASHINGTON- The government appealed on Wednesday a court ruling
that retired veterans who signed up with a promise of lifetime
free medical care in return for a 20-year hitch are entitled to
receive it.
The U.S. Court of Appeals for the Federal Circuit heard oral
arguments from government lawyers who said military recruiters
never were authorized to bind the government to such an expense.
"A promise is a promise" was the retort from retired
Air Force Col. George "Bud" Day, who served in World
War II as a Marine and Korea and Vietnam with the Air Force - in
Vietnam he was a prisoner-of-war, escaped and was recaptured -
and is representing the veterans.
Day said legislation and recruiting manuals from as early as to
1799 set out lifetime health care as a military recruiting tool
for the military.
Last year, a three-member panel of the 11-judge appellate court
overturned a lower court's ruling for the government and ordered
the case back to the trial judge in Florida to award damages.
The Justice Department appealed to the full panel, whose chief
judge, H. Robert Mayer, headed the first panel.
Justice Department lawyer E. Roy Hawkens cited other regulations
that require Congress expressly to authorize the money before
entitlements are promised. Otherwise, Hawkens said, officials
could "create a multibillion-dollar health-care system"
before any funding was set aside for it.
The court was expected to rule as early as next month, Day and
other court officials said. After the arguments and a short
question-and-answer session before a crowd of military retirees,
the judges left the bench after Mayer told their audience:
"We salute you for your service."
In his opinion for the three-judge panel last year, Mayer wrote:
"The retirees entered active duty in the armed forces on the
good faith belief that the government would fulfill its
promises."
At issue is whether the government broke a contract with the
nation's military retirees when it stopped providing them free
health care at age 65.
Currently, 20-year retirees are entitled to free care at military
facilities, on a space-available basis, or they can join an
HMO-type military health-care system known as TRICARE.
At age 65, however, retirees are forced into the Medicare system,
which generally does not cover prescription drugs and requires
about a $50 monthly premium.
Day said the suit could affect as many as 1.5 million retirees
and their dependents.
Date: Wed, 6 Mar 2002
23:01:16 -0500
From: Edie Smith capitolcrusader@hotmail.com
I attended the "Class Act" case before the Federal
Appeals Court this afternoon. I will attempt to relate some of my
thoughts......however, the technicalities debated today are above
my "paygrade!"
I am very appreciative to US Representative Jeff Miller, FLA for
attending the court session today......indicating his support
both for the military retiree and his constituents in Florida.
Phil Alperson, Legislative Director for US Representative Ronnie
Shows, also attended reflecting Rep. Shows long time support for
military retiree health care! (I had the pleasure of talking to
Rep. Miller's fine young staffer, Steve, who got there very early
and stood in line with the rest of us to get a seat for his
Congressman!!)
Reporters Debbie Funk, (The Army Times Newservice), Tom Philphott
(Military Update), Dale Eisman (Norfolk Virginian Pilot), The
Stars and Stripes, the Associated Press, were some of the media
reps in attendence.
NAUS was represented by Pres., Dick Murray, Chuck Partridge, Ben
Butler, and Boyce Allen and his wife. Dan Pettigrew was there
from the US Disabled Retirees Group.
If other Associations attended in support.....I did not recognize
their reps...(sorry) Maybe someone else can add to this list.
I also met Jim Whittington, Jack Hollingsworth, Bob Thompson, Bob
Sawallesh, A group from the Norfolk area and another from North
Carolina rented buses to come. I sat next to Helen Register and
her husband from Goldsboro, NC. John and David Vann, Jim Engelage
were also there. Many of the "active" group (Reinlie,
Pentecost, Riley, Schism) from Col. Day's area brought their
wives and it was nice to meet all of them. Bob Geasland drove up
from North Carolina. I met many others......just don't remember
all the names!!
Ed Lawton from Fairfax, VA. was also there.......he recently sent
an email suggesting we all call the White House comment line.
Hope all of you follow his suggestion.
My huge disappointment was the small attendence by retirees from
the DC area. The court was one block from the metro........easy
to reach from the suburbs!!
I agree with Phil Alperson's and Dave Perkin's assessment of the
case. I also believe the government attorney's could have been
more fair in disclosing their facts.......such as:
The military health benefit is not FREE.......(the benefit is
provided in lieu of a "reduced compensation." ) Mr.
Hawkins was questioned by one of the judges...regarding
"free." Mr. Hawkins could have responded with "the
benefit is part of "earned compensation."
Title 5, Section 301, occupied quite abit of the government's
debate......Judge Dyk pointed out that Department heads have
broad authority and discretion to enter into contracts that are
not based in statute......so I guess we need to read Section
301of Title 5.
Mr. Hawkins, DOJ attorney, presented the figure of $1.4 billion
spent by DoD on "space A" care last year for retirees,
but he did not offer that this would be for less than 30% of the
retirees and the money spent did not necessarily provide an
individual retiree with a comprehensive health
"benefit"...... (I think a prescription counts as a
"visit." ) I was also dismayed that Mr. Hawkins did not
include that the "space A care" in the past had an
exception that if the MTF provider referred his patient to a
civilian provider, the MTF had funds to pay for the referred
service....CHAMPUS might not be used. As recently as a few years
ago.......one of Senator John Warner's staff member's (A military
retiree also) was referred from Bethesda to Fairfax Hospital for
Heart Surgery......and Bethesda paid the bill.......not
CHAMPUS.....so there was no cost share to the retiree (at least
this is my understanding first hand from the staffer at the
annual TROA luncheon on the Hill.) The staffer was the one cited
in the Congressional Record by Senator Warner as having put
together his FEHB bill. With Tricare, I don't believe military
facilities have this budget column anymore (except for active
duty families who have no PRIME copays.)
The judges were very understanding about the retiree's concern
for the Part B requirement and supplemental insurance expense. I
would only imagine that this is because the Federal civilians are
NOT required by law to purchase Part B as an additional condition
of eligibility for their health benefit when they become eligible
for Medicare. Supplemental insurance is not necessary for
FEHBPlans, either. The government attorney seemed to miss this
point. Most, if not all the judges were above age 60 and I
imagine they have an insight to this the government attorneys did
not have.
WHAT CAN WE DO TO HELP FURTHER THIS CAUSE?
I suggest we work hard as individuals to recruit more members for
the Class Act Suit which in all likelihood will follow. Should a
class action lawsuit go forth with less than 10% of those
affected warrant the government's serious attention? If the
affected military retirees' themselves don't want to sign up for
the lawsuit, then why should the government feel bound to correct
this injustice? If these retirees' don't participate, should they
/ will they benefit from the work and participation of others?
It was very exciting to me to attend this Historic event and if
there is yet another appeal......then I hope we can fill the
streets and the Courtroom with interested military retirees!!
Edie Smith
Veterans troop to court
to battle for health care
By DALE EISMAN, The Virginian-Pilot
© March 7, 2002
http://www.pilotonline.com/military/ml0307ret.html
WASHINGTON -- They were warriors once, risking their lives in
careers of service. Most are gray- or white-haired now; they
carry canes rather than rifles and wear hearing aids instead of
helmets. They spend too many days at funerals or in hospitals,
watching themselves and their friends slip away.
But in a federal courthouse Wednesday, a band of long-retired
soldiers, sailors, airmen and Marines marched into battle once
more. And there was no mistaking their resolve.
``In grade school, we were taught that we live in a democracy . .
. ,'' said Neil Whitworth of Norfolk, a former Air Force
technical sergeant. ``Today, I want to see if possibly we're in a
totalitarian form of government.''
Whitworth was among more than 100 military retirees who packed
the U.S. Court of Appeals for the Federal Circuit to hear
arguments in a lawsuit aimed at punishing the federal government
for failing to provide career
troops with free health care for life.
If they win, up to 1.4 million military retirees and dependents
over 65 years old could collect $10,000 each -- a total of $14
billion. An estimated 40,000 military retirees over 65 live in
Virginia.
A three-judge panel ruled in the retirees' favor 13 months ago,
concluding that they had what amounts to a contract for free
care. But the Justice Department secured a rehearing before the
full 12-member court.
The retirees' fight for a benefit they insist was promised them
when they enlisted has spurred congressional action to give them
health insurance at a bargain premium, adding $4 billion per year
to the defense budget.
``We're not asking for charity. We earned certain benefits. We
would like to see those benefits honored,'' said Wiley Heninger
of Norfolk.
Whitworth, Heninger and about two dozen other ex-service members
from Hampton Roads rode a bus to Wednesday's hearing, then
trooped up Capitol Hill to remind U.S. Rep. Ed Schrock, R-2nd
District, of their interest in the issue. Heninger, 71, a retired
Navy chief petty officer, praised the Tricare for Life insurance
coverage that Congress extended to military retirees beginning
last October but said the $50 monthly premium ``is not part of my
deal.''
He was promised free care and won't settle for less, Heninger
said. ``I don't care about the damages. I care about the
benefit.''
The retirees' lawyer, retired Air Force Col. George ``Bud'' Day,
told the judges that beginning in 1799, the U.S. military entered
into what became a contract to care for career service members
and their dependents without charge.
The commitment never was spelled out by statute, Day
acknowledged, but was made and repeated in recruiting brochures
and personal appeals by officers soliciting re-enlistments.
Congresses and presidents who built and funded the military
health system acquiesced in the arrangement, and free care was
provided until 1995, Day argued. But with more than 100 military
bases shutting down in the wake of the end of the Cold War,
Congress that year forced military retirees over 65 into the
Medicare program.
Many continue to receive free care in military hospitals and
clinics when space permits. Justice Department lawyer E. Roy
Hawkens said such care on a space-availability basis is all the
military could ever promise, absent direct permission from
Congress.
He said recruiters who made commitments of lifetime care were
acting outside their authority. Both Hawkens and Day were
questioned aggressively by the judges, who gave no hint of how
long they might take deciding the issue. Several pressed Hawkens
on his contention that service secretaries could not bind their
successors to provide free care, and Judge Timothy B. Dyk noted
that the secretaries certainly have power to enter into other
binding contracts.
Chief Judge H. Robert Mayer, meanwhile, grilled Day on apparent
contradictions between military regulations limiting service
members' health benefits and the retirees' claims that they were
guaranteed free lifetime care. The Supreme Court has ruled that
government contracts can't be enforced when they conflict with
regulations already in place, Mayer suggested.
Though they say recruiters continued to include the promise in
literature and personal appeals until at least the early 1990s,
the retirees contend it had particular weight for those who
enlisted before 1956. That's when Congress first voted to limit
free care to that provided in military hospitals.
Day came to court Wednesday wearing the Medal of Honor awarded
him after a stint as a prisoner of war in the Vietnam era. He and
other military retirees living in the Florida panhandle began
their fight for free care in 1996, forming the Class Act Group to
press their case. Class Act now claims membership of more than
18,000 military retirees nationwide.
It is at the center of a network of other retiree organizations
that continue to lobby Congress for other changes in military
health coverage.
Reach Dale Eisman at icemandc@msn.com or (703) 913-9872.
Date: Thu, 7 Mar 2002
19:40:03 -0600
From: Harry Riley, CAG Representative
IMMEDIATE RELEASE, 07 MARCH 2002
Col "Bud" Day, counsel for Class Act Plaintiffs Robert
Reinlie and William O. Schism, announced the day after the March
6, 2002 hearing on Military Retiree Medical Care, it is clear the
plaintiffs carried the day at the Federal District Appeals Court
12 member en banc session in Washington, DC.
Day stated that after reviewing the questions that were posed by
the court members and the general thrust of the court's
questions, the en banc panel was approaching the case the same
way the 3 judge panel did when they held for the plaintiffs in
February 2001. Col Day said it was a lot easier to review the
case with a little time having passed, than it was the day of the
hearing and in the heat of battle.
Col Day said that his conferences with the plaintiffs, legal
watchers, reporters, and Class Act members convinced him that the
plaintiff's arguments overwhelmed the Department of Justice. He
noted that since the court had already ruled in his favor with a
long written opinion, this 12 judge panel would probably adopt
some version of that order in the very near future. Bottom line,
Day says he does not see a long delay from the court in rendering
their decision.
Day also noted that the court did not seem too impressed with the
government's claim that this order could cost the U.S. some $15
billion dollars for the 1,500,000 WWII/Korean retirees/veterans.
Bud says that the Little Tucker statute caps each claim at
$10,000.00 for the service member, and $10,000.00 for his/her
spouse, if both are paying Medicare Part B premiums and carrying
a supplemental policy.
Several hundred retired members, reporters, fellow attorneys, and
Class Act members attended the hearing. Those unable to be seated
in the courtroom were able to watch and hear the proceedings in
an overflow room. There was also a followup session conducted by
Day after the hearing in space provided by the Veterans
Administration. Mr. Phil Alperson from Representative Ronnie
Shows office attended the hearing as did Representative Jeff
Miller (1st District, Florida). Senator John McCain stated he was
"absolutely delighted" with Day's presentation of the
case.
It appears apparent to all, except perhaps to the Department of
Justice, that the court is suggesting the United States
Government cease fighting her warriors and right the wrong.
Harry Riley
CAG Representative
Date: Fri, 8 Mar 2002
09:43:01 -0500
From: "Alperson, Phil"
<Phil.Alperson@mail.house.gov>
http://stripesonline.com/article.asp?section=104&article=7174
Thursday,
March 7, 2002
Veterans rally at federal courthouse as health-care lawsuit is
heard
By Sandra Jontz, Washington bureauEuropean edition, Friday, March
8, 2002
WASHINGTON: Some veterans of the battlefield have taken their war
to the courtroom.
More than 100 veterans attended the Federal Circuit Court hearing
of the class action lawsuit Schism vs. U.S., in which veterans
seek to restore free medical care for life for retirees 65 and
older, and their dependents.
The plaintiffs, led by retired Air Force Col. George
"Bud" Day, argue that the government broke a contract
and a promise when, in 1995, it stopped providing free health
care when vets reached age 65.
As a result of the change, 20-year retirees can either get free
care at military hospitals only on a space-available basis or
subscribe to the health program Tricare For Life. At 65, they
must participate in Medicare and pay $50 monthly premium in
addition to co-payments for services and physician visits.
Steamed that the government "deliberately reneged on a
promise" to provide free health care for life, Vietnam
combat veteran Paul Hamacker said he made the three-hour road
trip from Virginia Beach on Wednesday to show his
"solidarity" in the fight.
About 130 veterans joined him, with groups chartering buses to
travel from southern Virginia and North Carolina.
They packed the courtroom, forcing others to sit in an overflow
room and watch on closed-circuit television, the first time the
court had to make such accommodations, clerks said.
The government has used the promise of lifetime health care as a
military recruiting tool from as early as 1799, Day argued,
showing examples to the judges.
Justice Department lawyer E. Roy Hawkens argued on behalf of the
government, and said recruiters never had written authority to
promise free health care for life to recruits. That promise, he
said, ignored a military regulation to care for vets only in a
military medical facility when space and staff were available.
Federal Judges Timothy B. Dyk and Raymond C. Clevenger asked,
however, how so many recruiters could possibly have gotten it so
wrong for so long. Hawkens couldn¹t answer them.
Much of the judges¹ focus was on the promises recruiters printed
in brochures and gave verbally to those signing up.
In the class action suit, retirees seek $10,000 each in damages;
and if the 12-judge panel rules in their favor, an estimated 1.4
million to 2 million retirees and their dependents over 65 years
old could collect, leaving the government with a $14 to $20
billion tab.
Sides have traded victories in the history of the case. First,
the government prevailed over the original suit, filed in 1996 in
Florida. The vets appealed the ruling and a three-judge panel
overturned the decision. The government then appealed, which
brings the case to its current status before the 12-member
federal panel. The judges could decide the case in one to three
months, clerks said.
The government is making it harder for retirees to get care in
military facilities, having closed 58 Stateside hospitals in the
past 10 years and converting 26 others into clinics, said
Hamacker, 61.
Last year, Dana Thomason spent $34,900 on health care for his
wife of 51 years, who suffered a stroke three years ago and needs
round-the-clock aid. His retirement years were to have been
blissful, he said, not debt-ridden.
Charles Dunn, 65, said he wasn't surprised by the government¹s
reversal.
"It's to be expected," said the Vietnam vet who worked
as a tug boat operator for the Army. "The government will
support those people who will benefit the government. We¹re now
a burden to them. We're old and can't serve.
"I put up with their crap for 20 years," he said.
"I just expected them to keep their promise."
Extracted from NAUS
Legislative Update - 03/08/02
Date: Fri, 8 Mar 2002 10:47:41 -0500
From: "Kimberly Stanish" kstanish@naus.org
UPDATE ON THE CLASS ACT GROUP 6 MARCH HEARING
Medal of Honor recipient Colonel George "Bud" Day, US
Air Force (Retired), before a packed Courtroom in the United
States Court of Appeals, Federal Circuit in Washington DC,
presented oral arguments in Schism / Reinlie that concerns the
"lifetime medical care promise". Because the hearing
room was standing room only the Court opened another room. The
room was equipped with a large screen TV and allowed the overflow
to see and hear the proceedings. It was good to note that among
those attending were Rep. Jeff Miller (R-1-FL), members of his
staff, Rep. Ronnie Shows' (D-4-MS) Legislative Director, Mr. Phil
Alperson, members of the media, "movers and shakers" in
the grassroots effort and representatives of national military
associations and veterans' organizations.
Colonel Day made a strong case unrebutted by the Department of
Justice (DoJ) and Department of Defense (DoD team of lawyers that
the health care promise was made and broken. Colonel Day pointed
out pre-7 June 1956 regulations and the services' interpretation
of the regulations provided for free health care for life for
military personnel and their families.
Under tough questioning by the Court, the DoJ/DoD team attempted
to use the Anti-deficiency Act as a defense. The Anti-deficiency
Act provides that no government official can obligate the
expenditure of funds unless otherwise appropriated by the
Congress. When the Court asked how many cases the government has
prosecuted under that Act, the DoJ/DoD team admitted they knew of
none. Further, the Act can be modified by the government
providing, the service which the services did for over 50-years.
Colonel Day when asked if he had any additional evidence
regarding the government's lifetime medical care promise, he
reminded the Court of the fact that the government has produced
no evidence that the promise was not made and had not been
breached.
At the end of the hearing, the Chief Justice recognized Colonel
Day's service to the nation and being a living Medial of Honor
recipient. The Court comments about Colonel Day came after
assuring the DoJ/DoD team and spectators that such recognition
has no bearing on the merits of the case before them.
The NAUS assessment of Colonel Day's presentation is that the
Class Act Group could not have had a more determined, dedicated
and tough-minded attorney to represent them.
After the hearing, retirees and others moved to Room 230 of the
VA headquarters, which NAUS arranged through the Office of the
Veterans Affairs. There Colonel Day made the following points:
NAUS thanks the retirees including NAUS Board
Co-Chairman Boyce Allen and his lovely wife, Ila, who attended
the hearing. Many traveled long distances and others came from
the Washington DC metropolitan area in response to the
invitations that were mailed.
Whatever the Court's ruling, it is clear that the final ruling
will be the result of US Supreme Court action. Meantime, the
military retired community must continue to keep up the pressure
on members of Congress to allow the retirees, their family
members and survivors the option to participate in the Federal
Employees Health Benefits Program (FEHBP) by enacting the
provisions of H.R.179/S.278.
2002 is an election year. This year every seat in the House and
one third of the Senate is open. Make the option to participate
in FEHBP, passing the Military Widow's Equity Act and funding the
pay restoration/concurrent receipt authorization enacted in the
FY02 National Defense Authorization Act (PL 107-107) election -
reelection issues.
Success of these agenda items will require a massive lobbying
effort at both the national and grassroots levels. Make your
position on these issues known to your congressional delegations
and the candidates for their seats.
Extracted from TROA's
legislative update, 03_08_02
Date: Fri, 08 Mar 2002 13:15:03 -0800
Issue 2: Class Act Group Gets Another
Day in Court
Col. George "Bud" Day, USAF (Ret), wearing the Medal of
Honor awarded for his heroism as a Vietnam prisoner of war, did a
fourth round of battle with Justice Department lawyers at
Wednesday's hearing of the Class Act Group's health care lawsuit
before the U.S. Court of Appeals for the Federal Circuit.
The suit contends that members who entered service before June 7,
1956 (the date of the first statutory reference to "space
available" care) were wrongly denied lifetime free health
care promised to career servicemembers in numerous recruiting and
retention briefings, brochures and other documents. Government
lawyers didn't deny such promises were made, but argued the
promises had no standing because no recruiter or other service
official has authority to promise such benefits that aren't
authorized by law.
In the first round in September 1998, a Florida district court
"regretfully" ruled for the government. Col. Day won
the second round in February 2001, when a three-judge panel of
the U.S. Court of Appeals ruled that the government had
effectively made a contract to provide free care and hadn't kept
it. In the third round last June, federal lawyers convinced the
full Court of Appeals to rehear the case.
If a boxing referee were scoring the judges' jabs at Wednesday's
hearing, it would have been a clear decision for the retirees, as
the judges directed numerous barbed questions and criticism at
the government attorney. One judge inquired whether the
government's funding of space-available care for older retirees
didn't, in effect, validate the promise. Another asked why, if
there is to be any exception to the requirement for specific
statutory authorization, this shouldn't be the perfect case to
apply it.
A court clerk cautioned afterward that a judge's final decision
can't always be predicted from his or her hearing questions
during oral argument. But the tone of the hearing and the fact
that three of the judges previously ruled for the retirees
certainly can't hurt the prospects of a favorable outcome.
Court sources indicate that it may be as little as a few weeks or
as long as a few months before the court issues its ruling in the
case.
Copyright © 2002, The
Retired Officers Association (TROA), all rights reserved. Part or
all of this message may be retransmitted for information
purposes, but may not be used for any commercial purpose or in
any commercial product, posted on a Web site, or used in any
non-TROA publication (other than that of a TROA affiliate, or a
member of The Military Coalition) without the written permission
of TROA. All retransmissions, postings, and publications of this
message must include this notice.
Military Update by: Tom
Philpott mailto:milupdate@aol.com
Appeals Court Still Irked By Broken Health Promises To Retirees -
March 7, 2002
Even with four times as many judges re-hearing the case, the U.S.
Court of Appeals for the Federal Circuit still sounds upset that
the government tried to shrug off promises of free lifetime
healthcare to a generation of military retirees.
That, at least, was the impression left after a dozen appellate
judges re-heard oral arguments March 6 in the six-year-old
lawsuit of Schism and Reinlie v. U.S.
With retirees from the World War II and Korean War-eras packing a
Washington, D.C., courtroom, and an overflow crowd watching on
closed-circuit television, Air Force retiree Col. George ``Bud''
Day opened his argument with a brief history of military
healthcare regulations and promises made to retirees.
Day, 77, wore a gray suit and the Medal of Honor, awarded for his
heroism as a prisoner of war in Vietnam. Among one hundred
retirees seated behind Day was George Wood, 72, of Goldsboro,
N.C. He arrived at court three hours early and stood in line for
two -- after a six-hour bus ride north with fellow retirees.
Attorney Day represents not only William Schism, 81, and Robert
Reinlie, 76, both retired Air Force officers, but the Class Act
Group, more than 30,000 retirees who have supported the lawsuit
with donations. They hope a trial court eventually will designate
the lawsuit a class action and award up to $10,000 apiece to
retirees who first entered service before June 7, 1956. That was
the date Congress finally defined its healthcare obligation to
military retirees as ``space-available care.''
The money would reimburse older retirees for having to pay
Medicare Part B and Medigap insurance premiums since 1995 when
TRICARE, the military's managed care program, began. TRICARE
forced thousands of elderly beneficiaries to rely on Medicare and
ended access to routine care in military medical facilities.
A three-judge panel of the appeals court gave retirees a victory
two years ago, with a unanimous ruling that the government had
breached its promise of lifetime medical care to retirees. But
the government appealed, the ruling was vacated and the appeals
court agreed to re-hear the case before all 12 judges.
Soon after the argument began, Day was interrupted by Judge Paul
Michel who asked him to reconcile recruiter promises of free
lifetime care with pre-1956 regulations that restricted retiree
care to the availability of hospital beds and staff. Those
regulations, Michel said, suggest the promise was always
conditional.
Despite the regulations, Day said, retirees routinely got the
promised care, until 1995. Judge Raymond Clevenger then asked if,
in delivering unconditional care to retirees for all those years,
the government acquiesced to the recruiter promises.
``Exactly right,'' said Day. Although hospital commanders had
regulatory authority to deny such care, in practice retirees only
needed an ID card to be seen.
Day argued for the first 15 minutes, and would then get the final
15 for rebuttal. As he sat down the first time, it wasn't
possible to tell how the court was leaning. But like the
three-judge panel in 2000, the full court quickly pounced on
Justice Department attorney E. Roy Hawkens who urged rejection of
the retirees' appeal. Not only was there no statutory basis for
the promise of lifetime health care but service regulations
conflicted with the same recruiter promises, he said. The
expectation of care, without a statutory basis, is not
enforceable.
Hawkens cited the Anti-Deficiency Act, which states that an
employee cannot obligate the government for money or services
unless authorized by law to do so.
``But isn't that, in fact, what happened?'' asked Clevenger. For
years the military did provide care to retirees based on their
expectations.
``Congressional intent is the touchstone for deciding this
case,'' countered Hawkens. But there was a promise and it was
accepted, said Clevenger. ``And the only missing element is the
authorization, right?''
Michel pressed Hawkens on whether recruiter promises, made in
good faith, should have no effect on the government's obligation
to provide benefits.
``That's correct, your honor?'' said Hawkens. This drew snickers
and bitter laughs from the courtroom of retirees.
Judge Arthur Gajarsa suggested Congress acquiesced to the promise
of free lifetime healthcare for retirees by funding such care for
decades.
But Hawkens said any such acquiescence was ``a conditional
privilege,'' which Congress could nullify when space became less
available under TRICARE.
``You're saying we have 50 years -- 150 years -- of nullity?''
asked Judge Pauline Newman, one of the judges who had ruled in
favor of retirees in 2000.
``No, Congress did,'' said Hawkens. Supreme Court case law, said
Michel, does allow exceptions to employees committing the
government to obligations not backed by statute.
``If that exists,'' he said, ``why isn't this a perfect case to
apply it?'' Hawkens pointed again to regulations that
specifically limited healthcare obligations to retirees. The
government must protect the appropriations process, keeping it
the responsibility of Congress, not of recruiters or even the
president. Hawkens also noted that new TRICARE for Life benefits
give elderly retirees most of what they seek in the lawsuit, but
also show that only Congress has such authority.
As the hour ended, Chief Judge H. Robert Mayer said his final
remark ``has nothing to do with the case''. But looking at Day,
he said, ``on behalf of everyone in the room...we salute you for
your service.''
With that, retirees stood and applauded. Wood, the retired chief
master sergeant from North Carolina, had promised to assess the
arguments he heard. He did so now, as the applause fell away.
``Colonel Day hit a home run,'' he said. ``No doubt in my mind.''
Comments and suggestions are welcomed. Write to Military Update,
P.O. Box 231111, Centreville, Va. 20120-1111, or send e-mail to: milupdate@aol.com
Date: Tue, 12 Mar 2002
13:54:59 EST
From: Vern Martin KEN8893@aol.com
Folks:
This young lady has been more than a friend to our cause for some
time, she is moving to the Dallas, TX area soon, I know we cannot
thank her enough for all the support she has given to our fight,
but we can try....Her e address is at the bottom of her column.
Vern
Tue, March 12,
2002
Vets make case for health care
Lynda Stringer, Times Record News, Wichita Falls, TX
Military retirees had another day in court on their
quest to have Uncle Sam honor their claim that they are owed free
lifetime health care.
The full 11-member U.S. Court of Appeals for the Federal Circuit
in Washington heard their medical care plight last week as
attorneys presented arguments in the retirees' health care class
action lawsuit.
Justice Department lawyer E. Roy Hawkens argued that military
recruiters weren't authorized to promise free lifetime medical
care in return for 20 years of military service. He also pointed
to laws that require congressional authorization before
entitlements are promised.
But retired Air Force Col. George "Bud" Day, the
attorney who argued the case, said recruiting posters and
literature dating back as far as 1799 promise free health care to
the career military.
"A promise is a promise," Day, a Medal of Honor
recipient and veteran of three wars, told the judges.
The panel's chief judge, H. Robert Mayer, headed the three-member
panel in February 2001 that overturned an earlier lower court
ruling for the government.
In the unanimous decision, the judges ruled the government
breached its promise and - if allowed to stand - ordered the
government to pay up to $10,000 each to veterans that have joined
the lawsuit.
While the Class Act Group is encouraged, they aren't celebrating
just yet.
"I'm a born pessimist, so I'm cautiously optimistic,"
CAG spokesman Tom Pentecost said. "But, I think it went
well."
Wichita Falls military retiree Ward Coston said, "I think we
have a pretty good chance of winning this thing," after
reading the online reports from his network of retirees who
attended the hearing in droves.
"We went in thinking we had the three that voted for us on
the small panel and all we needed was three more. In my own heart
I believe we've made it."
But, he's also realistic about the next step. Even if the judges
do rule in their favor, he believes the government would appeal
to the U.S. Supreme Court.
Pentecost said in order for the Supreme Court to take the case,
one of the justices would have to sponsor it and the appellate
court votes weighs heavily in that decision.
"If it's unanimous, it's doubtful the Supreme Court would
take it, but if it's a 6-5 decision, they'd probably say there's
some doubt here and this is an important case, so we need to
resolve those doubts," Pentecost said.
Coston said military retirees have fought hard for their country
and deserve the promise of free lifetime healthcare they were
given, but the government would rather cast them aside.
"They don't care anything about us, they just delay and deny
and are waiting until we die," he said.
A ruling is expected as early as next month.
Staff Writer Lynda Stringer can be reached at (940) 720-3461 or
by e-mail
at stringerl@wtr.com
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