Veterans for Common Sense v. Shinseki

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VETERANS FOR COMMON SENSE, a 
District of Columbia nonprofit
organization; VETERANS UNITED FOR
TRUTH, INC., a California nonprofit
organization, representing their
members and a class of all
veterans similarly situated,
Plaintiffs-Appellants,
v.
ERIC K. SHINSEKI, Secretary of
Veterans Affairs; UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS; No. 08-16728
STEVEN L. KELLER, Acting
Chairman, Board of Veterans’  D.C. No.
3:07-cv-03758-SC
Appeals; ALLISON A. HICKEY,
OPINION
Under Secretary, Veterans Benefits
Administration; BRADLEY G.
MAYES, Director, Compensation
and Pension Service; ROBERT A.
PETZEL, Under Secretary, Veterans
Health Administration; ULRIKE
WILLIMON, Veterans Service Center
Manager, Oakland Regional
Office, Department of Veterans
Affairs; UNITED STATES OF
AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Samuel Conti, Senior District Judge, Presiding

4823
4824 VETERANS FOR COMMON SENSE v. SHINSEKI
Argued and Submitted En Banc
December 13, 2011—San Francisco, California

Filed May 7, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Sidney R. Thomas, Susan P. Graber, M. Margaret McKeown,
Kim McLane Wardlaw, Johnnie B. Rawlinson, Jay S. Bybee,
Consuelo M. Callahan, Sandra S. Ikuta, and N. Randy Smith,
Circuit Judges.

Opinion by Judge Bybee;
Dissent by Judge Schroeder
 VETERANS FOR COMMON SENSE v. SHINSEKI 4827

COUNSEL

Gordon P. Erspamer, Morrison & Foerster LLP, San Fran-
cisco, California, for the plaintiffs-appellants.

Charles W. Scarborough, United States Department of Justice,
Civil Division, Appellate Section, Washington, D.C., for the
defendants-appellees.
4828 VETERANS FOR COMMON SENSE v. SHINSEKI
OPINION

BYBEE, Circuit Judge:

After a decade of war, many of our veterans are returning
home with physical and psychological wounds that require
competent care. Faced with the daunting task of providing
that care, as well as adjudicating the claims of hundreds of
thousands of veterans seeking disability benefits, the Depart-
ment of Veterans Affairs (“VA”)1 is struggling to provide the
care and compensation that our veterans deserve. See, e.g.,
Review of Veterans’ Claims Processing: Are Current Efforts
Working? Hearing Before the S. Comm. on Veterans’ Affairs,
111th Cong. 9 (2010) (statement of Michael Walcoff, Acting
Under Secretary for Benefits, U.S. Dep’t of Veterans Affairs)
(“Secretary Shinseki, the Veterans Benefits Administration
(VBA), and the entire VA leadership fully share the concerns
of this Committee, Congress as a whole, the Veterans Service
Organizations (VSOs), the larger Veteran community, and the
American public regarding the timeliness and accuracy of dis-
ability benefit claims processing.”).

Two nonprofit organizations, Veterans for Common Sense
and Veterans United for Truth (collectively “VCS”), ask us to
remedy delays in the provision of mental health care and the
adjudication of service-connected disability compensation
claims by the VA. VCS’s complaint leaves little doubt that
affording VCS the relief it seeks would require the district
court to overhaul the manner in which the VA provides men-
tal health care and adjudicates claims for benefits. VCS would
have the district court, among other things, order the imple-
mentation of new procedures for handling mental health care
1
In 1988, Congress reorganized the Veterans Administration as a
cabinet-level executive department and redesignated it as the Department
of Veterans Affairs. Department of Veterans Affairs Act, Pub. L. No. 100-
527, 102 Stat. 2635 (1988). As used here, “VA” may refer to the Depart-
ment and its predecessor, the Veterans Administration.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4829
requests, create an accelerated appeals process for claims, and
convert the claims-adjudication process into an adversarial
proceeding.

We conclude that we lack jurisdiction to afford such relief
because Congress, in its discretion, has elected to place judi-
cial review of claims related to the provision of veterans’ ben-
efits 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. See 38 U.S.C.
§§ 511, 7252, 7292; see also Yakus v. United States, 321 U.S.
414, 443 (1944). “Without jurisdiction the court cannot pro-
ceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing the
cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868). We conclude that the majority of VCS’s claims must
be dismissed for lack of jurisdiction. And where we do have
jurisdiction to consider VCS’s claims, we conclude that grant-
ing VCS its requested relief would transform the adjudication
of veterans’ benefits into a contentious, adversarial system—
a system that Congress has actively legislated to preclude. See
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,
323-24 (1985). The Due Process Clause does not demand
such a system.

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. We conclude that the district court
lacked jurisdiction to resolve VCS’s claims for system-wide
implementation of the VA’s mental health care plans, as well
as VCS’s request for procedures intended to address delays in
the provision of mental health care. We similarly determine
that the district court lacked jurisdiction to consider VCS’s
statutory and due process challenges to delays in the system
of claims adjudication. We do conclude, however, that the
district court had jurisdiction to consider VCS’s claims related
4830 VETERANS FOR COMMON SENSE v. SHINSEKI
to the adjudication procedures in VA Regional Offices and
that the district court properly denied those claims on the mer-
its.

We therefore affirm the district court in part, reverse in
part, and remand with instructions to dismiss the case.

I. FACTUAL AND PROCEDURAL BACKGROUND2

There are approximately 25 million veterans in the United
States and, as of May 2007, between 5 and 8 million of those
veterans were enrolled with the VA.3 A significant number of
veterans, many of whom have returned recently from opera-
tions in Iraq and Afghanistan, suffer from service-related dis-
abilities, and therefore seek mental health care from the
Veterans Health Administration (“VHA”) and disability com-
pensation from the Veterans Benefits Administration (“VBA”).4

A. The Suit

In 2007, two nonprofit organizations, Veterans for Com-
mon Sense and Veterans United for Truth, filed suit in the
Northern District of California. On behalf of themselves, their
members, and a putative class of veterans with post-traumatic
stress disorder (“PTSD”) eligible for or receiving medical ser-
vices, and veterans applying for or receiving service-
2
Parts of this opinion are drawn from the three-judge panel majority’s
opinion. The panel’s contribution should be noted and is appreciated.
3
The district court found these facts. We take judicial notice of current
official figures provided by the VA: 23 million veterans, a third of whom
are enrolled for health care with the VHA and of whom 3 million receive
disability benefits. See Nat’l Ctr. for Veterans Analysis of Statistics, VA
Benefits & Health Care Utilization (July 30, 2010), available at
http://www.va.gov/VETDATA/Pocket-Card/4X6_summer10_sharepoint
.pdf.
4
The VA is divided into three branches: the Veterans Benefits Adminis-
tration, Veterans Health Administration, and the National Cemetery
Administration.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4831
connected disability benefits, VCS seeks sweeping declara-
tory and injunctive relief. Such relief is warranted, VCS
alleges, because the VA’s handing of mental health care and
service-related disability claims deprives VCS of property in
violation of the Due Process Clause of the Constitution and
violates the VA’s statutory duty to provide timely medical
care and disability benefits. VCS specifically disavows seek-
ing relief on behalf of any individual veteran, but instead
challenges “average” delays in the VA’s provision of mental
health care and disability benefits. Compl. ¶¶ 12, 38-39. We
briefly summarize VCS’s claims.

First, with respect to the VHA’s duty to provide veterans
with mental health care, VCS challenges VHA procedures
that allegedly result in delayed care. Id. ¶¶ 31, 184-200, 277.
VCS also challenges the lack of procedures for veterans to
expedite that care. Id. ¶¶ 31, 277. VCS therefore asked the
district court to declare, among other things, that the lack of
procedures to remedy delays in the provision of medical care
and treatment violates due process. Id. ¶¶ 31, 258-60. VCS
also seeks to enjoin the VA from permitting protracted delays
in the provision of mental health care and to compel the VHA
to implement governmental recommendations for improving
the provision of mental health care.5 Id. ¶¶ 31, 277.

Second, VCS challenges VBA delays in the adjudication
and resolution of disability-compensation claims under both
the Administrative Procedure Act (“APA”) and the Due Pro-
cess Clause of the Fifth Amendment. Id. ¶¶ 31, 145-83, 277.
VCS asserts that the adjudication of those claims, which
begins at one of the VA’s 57 Regional Offices and proceeds
through the Board of Veterans’ Appeals, the Court of Appeals
5
Those recommendations are found in the VA’s 2004 Mental Health
Strategic Plan (“Plan”) and a June 2007 memorandum from the then-
Deputy Under Secretary for Health Operations and Management, William
Feeley. Both documents set out specific recommendations intended to
improve the VA’s provision of mental health care services to veterans.
4832 VETERANS FOR COMMON SENSE v. SHINSEKI
for Veterans Claims (“Veterans Court”),6 an Article I court,
38 U.S.C. §§ 7251, 7266(a), and the Federal Circuit, 38
U.S.C. § 7292(a), is plagued by unreasonable delays that
result in a functional denial of benefits. Compl. ¶¶ 31, 145-83,
277. VCS therefore seeks both declaratory and injunctive
relief to remedy those delays. Id. ¶ 277.

Finally, VCS challenges the constitutionality of numerous
VBA practices and procedures, including the absence of trial-
like procedures at the VA’s Regional Offices. Id. ¶¶ 30,
201-03, 262-63. VCS also seeks to enjoin the VBA from pre-
maturely denying PTSD and other service-connected disabil-
ity compensation claims. Id. ¶¶ 31, 277.7

B. The District Court Denies VCS Relief

After the district court denied in large part the VA’s motion
to dismiss, VCS requested a preliminary injunction on its
mental health claims. The district court held an evidentiary
hearing, but deferred ruling on the preliminary injunction,
instead merging the request with a bench trial on the merits
that would address all of VCS’s claims.8

The district court held a seven-day bench trial and, two
months later, issued a comprehensive Memorandum of Deci-
6
The court as initially established was called the United States Court of
Veterans Appeals. The name was later changed by the Veterans Programs
Enhancement Act of 1998 to the U.S. Court of Appeals for Veterans
Claims. Pub. L. No. 105-368, § 511, 112 Stat. 3315, 3341.
7
In its complaint, VCS brought other challenges to VA procedures,
including a challenge to the absence of class action procedures in the adju-
dication of benefits claims, as well as a challenge arguing that VA prac-
tices deny veterans access to the courts. Compl. ¶¶ 202, 261-63. VCS,
however, appears to have abandoned these claims on appeal, and thus we
address only those claims that VCS has preserved on appeal.
8
VCS objected to the trial schedule, as well as the limitations on discov-
ery the district court imposed, and the district court overruled those objec-
tions.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4833
sion, Findings of Fact and Conclusions of Law. See Veterans
for Common Sense v. Peake (“Veterans”), 563 F. Supp. 2d
1049 (N.D. Cal. 2008). The district court denied VCS’s vari-
ous claims and concluded that ordering the relief requested by
VCS would draw the district court into resolving when and
how care is provided—a role that it was not equipped to
undertake. Id. at 1080-82. First, with respect to the VHA’s
provision of mental health care, the district court rejected
VCS’s challenge because VCS failed to identify a discrete,
final agency action that the VA was required to take. Id. at
1082-83; see 5 U.S.C. § 706(1); see also Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004). Similarly, the
district court rejected VCS’s due process claims challenging
the VA’s failure to provide timely and effective mental health
care because the VA’s health care system reflected “an appro-
priate balance between safeguarding the veteran’s interest in
medical treatment and permitting medical treatment without
overly burdensome procedural protections.” Veterans, 563 F.
Supp. 2d at 1082.

With respect to the VBA’s administration of service-related
disability compensation, the district court denied VCS relief
on the grounds that both 38 U.S.C. § 511 and § 502 precluded
its review. The court reasoned that, because “[t]he issue . . .
of whether a veteran’s benefit[s] claim adjudication has been
substantially delayed will often hinge on specific facts of that
veteran’s claim,” it lacked jurisdiction under 38 U.S.C.
§ 511(a) to review the causes of delayed adjudication. Id. at
1083-84. It likewise found that ordering the VBA to remedy
delays by implementing new procedures would “invariably
implicate VA regulations,” review of which may be con-
ducted only by the Federal Circuit under 38 U.S.C. § 502. Id.
at 1084. The district court, however, reached the merits of
VCS’s disability-based claims, but concluded that neither
delays in the VBA’s Regional Offices’ adjudication of
disability-related claims, nor the lack of trial-like protections
for veterans raising such claims, was unreasonable under the
APA or violative of due process. Id. at 1085-86. The district
4834 VETERANS FOR COMMON SENSE v. SHINSEKI
court therefore denied VCS’s request for a permanent injunc-
tion and declaratory relief, and granted judgment in favor of
the VA. Id. at 1092.

VCS appealed. A panel of this court, by a 2-1 majority,
reversed on the constitutional claims. Veterans for Common
Sense v. Shinseki, 644 F.3d 845, 878 (9th Cir. 2011). The
panel affirmed the district court’s conclusion that the VA’s
procedures at its Regional Offices satisfied due process. Id. at
887-88. We granted the VA’s petition for rehearing en banc.
Veterans for Common Sense v. Shinseki, 663 F.3d 1033 (9th
Cir. 2011).

II. JURISDICTION

Before we may address VCS’s claims on the merits, we
must consider the government’s argument that the Veterans’
Judicial Review Act, Pub. L. No. 100-687, div. A, 102 Stat.
4105 (1988) (“VJRA”), codified at various sections in Title
38, deprives us of jurisdiction over these claims. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (holding
that a court must have jurisdiction to reach the merits). We
first review the history of the VJRA and Congress’s long-held
concern with judicial intrusion into the VA’s handling of vet-
erans’ requests for benefits. We then consider the way in
which the courts have construed the provision in the VJRA
that precludes review of VA decisions, 38 U.S.C. § 511.

A. Jurisdiction over Veterans Benefits

Article III confers “[t]he judicial Power of the United
States” on a supreme court and “such inferior Courts as the
Congress may from time to time ordain and establish.” U.S.
Const. art. III, § 1. The “judicial Power” vested in such courts
“extend[s] to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties
made.” Id. art. III, § 2, cl. 1. Article III is not self-executing,
however, so the jurisdiction of inferior federal courts depends
 VETERANS FOR COMMON SENSE v. SHINSEKI 4835
on an affirmative statutory grant. See United States v. Hudson,
11 U.S. (7 Cranch) 32, 33 (1812) (“[Only] the Supreme
Court[ ] possesses jurisdiction derived immediately from the
constitution, and of which the legislative power cannot
deprive it. All other Courts created by the general Govern-
ment possess no jurisdiction but what is given them by the
power that creates them, and can be vested with none but
what the power ceded to the general Government will autho-
rize them to confer.”). Article III’s “federal question jurisdic-
tion” is statutorily conferred on federal district courts in 28
U.S.C. § 1331, which VCS cites as the source of the district
court’s jurisdictional authority. That section provides: “The
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. But the fact that federal
courts are vested with such jurisdiction over “all civil actions”
does not mean that all federal courts may exercise jurisdiction
over all such civil actions. The Constitution also grants to
Congress the power to control federal court jurisdiction
through “such Exceptions, and under such Regulations as the
Congress shall make.” U.S. Const. art. III, § 2, cl. 2; see Pal-
more v. United States, 411 U.S. 389, 400-01 (1973) (holding
that Congress is not required to vest inferior federal courts
“with all the jurisdiction it was authorized to bestow under
Art. III”). And Congress is under no obligation to confer juris-
diction upon inferior federal courts equally; indeed, no court
“can assert a just claim to jurisdiction exclusively conferred
on another, or withheld from all.” Sheldon v. Sill, 49 U.S. (8
How.) 441, 449 (1850) (“Congress may withhold from any
court of its creation jurisdiction of any of the enumerated con-
troversies. Courts created by statute can have no jurisdiction
but such as the statute confers.”).

In cases involving benefits owed to veterans, Congress has
created a scheme conferring exclusive jurisdiction over claims
affecting veterans’ benefits to some federal courts, while
denying all other federal courts any jurisdiction over such
claims. The source of that statutory scheme is the Veterans’
4836 VETERANS FOR COMMON SENSE v. SHINSEKI
Judicial Review Act of 1988. To understand the import of the
VJRA, and how it affects our jurisdiction to consider VCS’s
claims here, it is helpful to examine the history of judicial
review of VA decisions.

1. History of Judicial Review

Our discussion will be brief because the history of judicial
review of VA decisionmaking is a short one. Congress estab-
lished the VA in 1930. Act of July 3, 1930, ch. 863, § 1, 46
Stat. 1016, 1016. Three years later, Congress prohibited judi-
cial review of the VA’s benefits decisions. Act of Mar. 20,
1933, ch. 3, § 5, 48 Stat. 8, 9 (“All decisions rendered by the
Administrator under . . . this title, or the regulations issued
pursuant thereto, shall be final and conclusive on all questions
of law and fact, and no other official or court of the United
States shall have jurisdiction to review . . . any such deci-
sion.”); see also Lynch v. United States, 292 U.S. 571, 587
(1934) (construing the statute to “remove the possibility of
judicial relief”). Congress has “consistently precluded judicial
review of veterans’ benefits determinations” thereafter. Lar-
rabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499 (2d
Cir. 1992).

Over time, however, exceptions to the preclusion provision
began to appear. This development occurred most notably in
the D.C. Circuit, see, e.g., Tracy v. Gleason, 379 F.2d 469,
472-73 (D.C. Cir. 1967), where a “procession of decisions . . .
‘significantly narrow[ed] the preclusion statute’ ” and limited
its application to bar review of challenges related to initial fil-
ing of claims. Larrabee ex rel. Jones, 968 F.2d at 1500 (quot-
ing Note, Judicial Review of Allegedly Ultra Vires Actions of
the Veterans’ Administration: Does 38 U.S.C. § 211(a) Pre-
clude Review?, 55 Fordham L. Rev. 579, 596 (1987) (alter-
ation in original)). In response to the D.C. Circuit’s “fairly
tortured construction” of the jurisdictional limitation, in 1970
Congress reemphasized its “clear” intent that the “exemption
from judicial review . . . be all inclusive,” and it amended the
 VETERANS FOR COMMON SENSE v. SHINSEKI 4837
statute to “provide that except for certain contractual benefits,
the decisions of the Administrator on any question of law or
fact under any law administered by the Veterans’ Administra-
tion” shall be unreviewable. H.R. Rep. No. 91-1166 at 10
(1970), reprinted in 1970 U.S.C.C.A.N. 3723, 3730-31. The
result was 38 U.S.C. § 211,9 the precursor to § 511, which we
construe here.

Four years later, the Supreme Court interpreted § 211 in the
context of an equal protection challenge to statutes related to
veterans’ benefits. Johnson v. Robison, 415 U.S. 361 (1974).
The Supreme Court held that § 211 precluded only review of
decisions “that arise in the administration by the Veterans’
Administration of a statute providing benefits for veterans.”
Id. at 367 (emphasis added). Declaring that construing § 211
to eliminate all federal court review of constitutional chal-
lenges to veterans’ benefits legislation would raise “serious
questions concerning the constitutionality of § 211,” and
invoking the constitutional avoidance doctrine, the Court con-
strued § 211 to allow federal court review of a challenge to
the constitutionality of the statute itself. Id. at 366-67. The
Robison Court therefore concluded that district courts had
jurisdiction to consider a direct facial challenge to statutes
affecting veterans’ benefits. Id. at 367.

Fourteen years after deciding Robison, the Supreme Court
revisited the jurisdictional limitations of § 211 in Traynor v.
Turnage, 485 U.S. 535 (1988). There, the Court held that
9
That section provided:
[T]he decisions of the Administrator on any question of law or
fact under any law administered by the Veterans’ Administration
providing benefits for veterans and their dependents or survivors
shall be final and conclusive and no other official or any court of
the United States shall have power or jurisdiction to review any
such decision by an action in the nature of mandamus or other-
wise.
38 U.S.C. § 211(a) (1970).
4838 VETERANS FOR COMMON SENSE v. SHINSEKI
§ 211 did not bar federal courts from reviewing whether the
VA’s regulations conflicted with § 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794, which requires that federal pro-
grams not discriminate against handicapped individuals solely
because of their handicap. Traynor, 485 U.S. at 545. Section
211(a), the Court said, “insulates from review decisions of
law and fact . . . made in interpreting or applying a particular
provision of that statute to a particular set of facts.” Id. at 543.
The Court noted that the VA had no “special expertise in
assessing the validity of its regulations” against “a later
passed statute of general application.” Id. at 544. The Court
doubted that permitting federal court review would interfere
with the VA or burden the agency with “expensive and time-
consuming litigation.” Id. (internal quotation marks omitted).
The Court invited the VA to “seek[ ] appropriate relief from
Congress” if “experience proves otherwise.” Id. at 544-45.

2. The Veterans’ Judicial Review Act

Congress responded almost immediately to the Court’s
invitation in Traynor. For Congress, Traynor threatened to
increase the judiciary’s involvement in “technical VA
decision-making.” See H.R. Rep. No. 100-963, at 20-21, 27
(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5802-03,
5809-10. In order to dissuade the judiciary from ignoring “the
explicit language that Congress used in isolating decisions of
the Administrator from judicial scrutiny,” id. at 21, 1988
U.S.C.C.A.N. at 5802, Congress overhauled both the internal
review mechanism and § 211 in the VJRA. Pub. L. No. 100-
687, 102 Stat. 4105.

[1] The VJRA made three fundamental changes to the pro-
cedures and statutes affecting review of VA decisions. First,
the VJRA placed responsibility for reviewing decisions made
by VA Regional Offices and the Board of Veterans’ Appeals
in a new Article I court, the United States Court of Appeals
for Veterans Claims. 38 U.S.C. §§ 7251, 7261. As Congress
explained, the creation of the Veterans Court was “intended
 VETERANS FOR COMMON SENSE v. SHINSEKI 4839
to provide a more independent review by a body which is not
bound by the Administrator’s view of the law, and that will
be more clearly perceived as one which has as its sole func-
tion deciding claims in accordance with the Constitution and
laws of the United States.” H.R. Rep. No. 100-963, at 26,
1988 U.S.C.C.A.N. at 5808. The statute also “provide[d]
claimants with an avenue for the review of VA decisions that
would otherwise have been unreviewable” under prior
veterans-related legislation. Beamon v. Brown, 125 F.3d 965,
972 (6th Cir. 1997).

Congress indicated that the Veterans Court’s authority
would extend to “all questions involving benefits under laws
administered by the VA. This would include factual, legal,
and constitutional questions.” H.R. Rep. No. 100-963, at 5,
1988 U.S.C.C.A.N. at 5786 (emphasis added). To that end,
Congress conferred on the Veterans Court “exclusive jurisdic-
tion” to review decisions of the Board of Veterans’ Appeals,
38 U.S.C. § 7252(a) (emphasis added), and its powers include
the authority to decide any question of law relevant to benefits
proceedings, id. § 7261(a)(1), and “compel action of the Sec-
retary unlawfully withheld or unreasonably delayed,” id.
§ 7261(a)(2). The Veterans Court also has authority under the
All Writs Act to issue “writs necessary or appropriate in aid
of [its] jurisdiction[ ].” 28 U.S.C. § 1651(a); see also Ers-
pamer v. Derwinski, 1 Vet. App. 3, 7 (1990) (holding “that
this court has jurisdiction to issue extraordinary writs under
the All Writs Act”).

Second, decisions of the Veterans Court are reviewed
exclusively by the Federal Circuit, which “shall decide all rel-
evant questions of law, including interpreting constitutional
and statutory provisions.” 38 U.S.C. § 7292(a), (c), (d)(1).10
Although the Federal Circuit may not review factual determi-
10
The VJRA also vested the Federal Circuit with exclusive jurisdiction
over challenges to VA rules, regulations, and policies. 38 U.S.C. §§ 502,
7292.
4840 VETERANS FOR COMMON SENSE v. SHINSEKI
nations, it may review the application of law to facts if a con-
stitutional issue is implicated. Id. § 7292(d)(2). The decisions
of the Federal Circuit are final and only “subject to review by
the Supreme Court upon certiorari.” Id. § 7292(c). As the Sec-
ond Circuit observed, “[b]y providing judicial review in the
Federal Circuit, Congress intended to obviate the Supreme
Court’s reluctance to construe [§ 211] as barring judicial
review of substantial statutory and constitutional claims,
while maintaining uniformity by establishing an exclusive
mechanism for appellate review of decisions of the Secre-
tary.” Larrabee ex rel. Jones, 968 F.2d at 1501 (citations
omitted).

Third and finally, Congress expanded the provision pre-
cluding judicial review, formerly § 211. Under the new provi-
sion, eventually codified at 38 U.S.C. § 511,11 the VA “shall
decide all questions of law and fact necessary to a decision by
the Secretary under a law that affects the provision of benefits
by the Secretary to veterans.” 38 U.S.C. § 511(a).12 Whereas
§ 211(a) prohibited review of “decisions . . . under any law
. . . providing benefits for veterans,” 38 U.S.C. § 211(a)
(1970), § 511(a) prohibits review of “all questions of law and
fact necessary to a decision . . . that affects the provision of
benefits,” 38 U.S.C. § 511(a) (2006). With this change, Con-
gress intended to “broaden the scope of section 211” and limit
11
Section 211 was recodified as § 511 by the Department of Veterans
Affairs Codification Act, Pub. L. No. 102-83, 105 Stat. 378 (1991). We
will refer to the pre-VJRA provision as § 211 and the post-VJRA provi-
sion as § 511.
12
38 U.S.C. § 511(a) states in full:
The Secretary shall decide all questions of law and fact necessary
to a decision by the Secretary under a law that affects the provi-
sion of benefits by the Secretary to veterans or the dependents or
survivors of veterans. Subject to subsection (b), the decision of
the Secretary as to any such question shall be final and conclu-
sive and may not be reviewed by any other official or by any
court, whether by an action in the nature of mandamus or other-
wise.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4841
outside “court intervention” in the VA decisionmaking pro-
cess. See H.R. Rep. No. 100-963, at 27, 1988 U.S.C.C.A.N.
at 5809; see also Larrabee ex rel. Jones, 968 F.2d at 1501
(“The VJRA . . . broadens section 211’s preclusion of judicial
review by other courts.”). The nonreviewability provision in
§ 511(a) is subject to four exceptions, one of which is relevant
here and we have previously discussed: The Veterans Court
and the Federal Circuit may review the Secretary’s decisions
regarding veterans’ benefits. 38 U.S.C. § 511(b)(4); see id.
§§ 7252, 7292.

[2] In sum, the VJRA supplies two independent means by
which we are disqualified from hearing veterans’ suits con-
cerning their benefits. First, Congress has expressly disquali-
fied us from hearing cases related to VA benefits in § 511(a)
(“may not be reviewed by any . . . court”), and second, Con-
gress has conferred exclusive jurisdiction over such claims to
the Veterans Court and the Federal Circuit, id. §§ 511(b)(4),
7252(a), 7292(c). The provisions may not be co-extensive, so
if a claim comes within either provision, the district court is
divested of jurisdiction that it otherwise might have exercised
under 28 U.S.C. § 1331, and we are divested of any power of
appellate review. See H.R. Rep. No. 100-963, at 28, 1988
U.S.C.C.A.N. at 5810 (“By vesting jurisdiction of challenges
brought under the APA solely in the Court of Appeals for the
Federal Circuit, the bill deprives United States District Courts
of jurisdiction to hear such matters under 28 U.S.C. 1331.”).
Together, these provisions demonstrate that Congress was
quite serious about limiting our jurisdiction over anything
dealing with the provision of veterans’ benefits.

B. Judicial Construction of § 511

We have had limited opportunity to address the scope of
the jurisdictional limitation in § 511. In Chinnock v. Turnage,
we noted that § 511 precluded our review of the VA’s inter-
pretation of a regulation that affected the denial of a veteran’s
disability benefits. 995 F.2d 889, 893 n.2 (9th Cir. 1993).
4842 VETERANS FOR COMMON SENSE v. SHINSEKI
Then, in Hicks v. Small, we concluded that § 511 prevented
us from considering a veteran’s state tort claims brought
against a VA doctor because adjudication of those claims
“would necessitate a ‘consideration of issues of law and fact
involving the decision to reduce Hicks’ benefits,’ a review
specifically precluded by 38 U.S.C. § 511(a).” 69 F.3d 967,
970 (9th Cir. 1995) (quoting Hicks v. Small, 842 F. Supp. 407,
413-14 (D. Nev. 1993)). And in Littlejohn v. United States,
we concluded that, although “the Federal Circuit [is] the only
Article III court with jurisdiction to hear challenges to VA
determinations regarding disability benefits,” we could con-
sider a veteran’s Federal Tort Claims Act (“FTCA”) claim
alleging negligence against VA doctors because doing so
would not “possibly have any effect on the benefits he has
already been awarded.” 321 F.3d 915, 921 (9th Cir. 2003).13
In neither Chinnock, Hicks, nor Littlejohn did we articulate a
clear standard for evaluating our jurisdiction when a party
raises claims regarding VA benefits.

[3] Similarly, most other circuits have not articulated a
comprehensive test to determine the preclusive contours of
§ 511. That being said, a survey of cases from various circuits
that have analyzed § 511 demonstrates some consistent,
largely undisputed conclusions as to what § 511 does (and
does not) preclude. In general, review of decisions made in
the context of an individual veteran’s VA benefits proceed-
ings are beyond the jurisdiction of federal courts outside the
review scheme established by the VJRA. This is true even if
the veteran dresses his claim as a constitutional challenge, see
Zuspann v. Brown, 60 F.3d 1156, 1159-60 (5th Cir. 1995)
(finding no remedy for alleged constitutional violations
because veteran was ultimately “complaining about a denial
of benefits”); Sugrue v. Derwinski, 26 F.3d 8, 10-11 (2d Cir.
13
The FTCA specifically confers jurisdiction on federal district courts
to hear such claims. See 28 U.S.C. § 1346(b)(1). We also noted that the
VA had separate procedures for dealing with FTCA claims. See Littlejohn,
321 F.3d at 921 n.5.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4843
1994) (“[T]he courts do not acquire jurisdiction to hear chal-
lenges to benefits determinations merely because those chal-
lenges are cloaked in constitutional terms.”); Larrabee ex rel.
Jones, 968 F.2d at 1498 (dismissing veteran’s due process
challenge where “[t]he gravamen of the amended complaint
[was] that the VA ha[d] failed to provide [the veteran] with
adequate care”); Hicks v. Veterans Admin., 961 F.2d 1367,
1369-70 (8th Cir. 1992) (veteran’s claim that his benefits
were reduced because he exercised his First Amendment
rights was ultimately a “challenge to a decision affecting ben-
efits” and precluded by § 511), and even where the veteran
has challenged some other wrongful conduct that, although
unrelated to the VA’s ultimate decision on his claim, affected
his or her benefits proceeding, see Weaver v. United States,
98 F.3d 518, 519-20 (10th Cir. 1996) (finding no jurisdiction
where the claimant sued for conspiracy and fraud, claiming
that VA employees concealed his medical records); cf. In re
Russell, 155 F.3d 1012, 1013 (8th Cir. 1998) (per curiam)
(court could not issue writ of mandamus ordering the Board
of Veterans’ Appeals and Veterans Court to act on veteran’s
request for benefits). But see Disabled Am. Veterans v. U.S.
Dep’t of Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992)
(“[S]ince the Veterans neither make a claim for benefits nor
challenge the denial of such a claim, but rather challenge the
constitutionality of a statutory classification drawn by Con-
gress, the district court had jurisdiction . . . .”).

The Federal Circuit has also addressed the scope of § 511,
albeit primarily in cases that do not involve a veteran’s chal-
lenge to the VA’s administration of benefits. In Hanlin v.
United States, an attorney sued the VA for attorney’s fees in
the Court of Federal Claims, claiming a breach of implied
contract under a fee arrangement with a veteran. 214 F.3d
1319, 1320 (Fed. Cir. 2000). Although the government argued
that § 511 precluded review in that court, the Federal Circuit
disagreed, holding that Ҥ 511(a) does not require the Secre-
tary to address such a claim and thus does not provide the VA
with exclusive jurisdiction over [the attorney]’s claim.” Id. at
4844 VETERANS FOR COMMON SENSE v. SHINSEKI
1321. Then, in Bates v. Nicholson, the Federal Circuit held
that a determination of whether to terminate the certification
of an attorney to practice before the VA was subject to the
jurisdiction of the Board of Veterans’ Appeals. 398 F.3d
1355, 1365-66 (Fed. Cir. 2005). Rejecting the concurrence’s
criticism that its decision needlessly expanded § 511, the
court noted that § 511’s preclusion “contemplates a formal
‘decision’ by the Secretary or his delegate” and does not
apply to every decision that may indirectly affect benefits. Id.
at 1365.

The D.C. Circuit, in a series of cases, and the Sixth Circuit,
in a case very similar to this one, have articulated the most
comprehensive and relevant standard for determining the
scope of § 511. See Broudy v. Mather, 460 F.3d 106, 115
(D.C. Cir. 2006); Thomas v. Principi, 394 F.3d 970, 974
(D.C. Cir. 2005); Price v. United States, 228 F.3d 420, 422
(D.C. Cir. 2000) (per curiam); Beamon, 125 F.3d at 971. In
Price, the D.C. Circuit held that § 511 precluded the district
court’s jurisdiction to consider a veteran’s claim for reim-
bursement of medical expenses because, in order for the court
to resolve whether the VA had failed to reimburse the veteran,
it “would require the district court to determine first whether
the VA acted properly in handling Price’s request for reim-
bursement.” 228 F.3d at 422. As the court noted, “courts have
consistently held that a federal district court may not entertain
constitutional or statutory claims whose resolution would
require the court to intrude upon the VA’s exclusive jurisdic-
tion.” Id.14

The D.C. Circuit confirmed this analysis in Thomas. There,
the veteran brought an action under the FTCA in which he
alleged that the VA had “failed to render the appropriate med-
ical care services” and thereby denied him “medical care
treatment.” Thomas, 394 F.3d at 975 (internal quotation
14
We previously cited Price with approval in Littlejohn, 321 F.3d at
921.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4845
marks omitted). Relying on Price, the D.C. Circuit held that
the relevant test was “whether adjudicating Thomas’s claims
would require the district court ‘to determine first whether the
VA acted properly in handling’ Thomas’s benefits request.”
Id. at 974 (quoting Price, 228 F.3d at 422). The court con-
cluded that some of Thomas’s tort claims were barred by
§ 511, while others survived. Id. at 974-75.

The D.C. Circuit confirmed this test again in Broudy, 460
F.3d at 114-15, and also identified a situation in which § 511
did not preclude its jurisdiction. There, the plaintiffs sued the
VA for allegedly withholding radiation test results, effectively
denying the plaintiffs access to the courts. Id. at 109-10. The
plaintiffs requested, among other things, the “immediate
release of all relevant records and documents” and an injunc-
tion preventing future instances of such misconduct. Id. at
110. Distinguishing the case from Price and Thomas, the D.C.
Circuit held that it had jurisdiction to consider the plaintiffs’
claims because those claims did not require the district court
“to decide whether any of the veterans whose claims the Sec-
retary rejected [we]re entitled to benefits.” Id. at 115. Nor did
their claims require the court to “revisit any decision made by
the Secretary in the course of making benefits determina-
tions.” Id. (emphasis added). Thus, the D.C. Circuit concluded
that it had jurisdiction. Id.

In addition to these cases from the D.C. Circuit, we find a
closely analogous case in the Sixth Circuit’s decision in Bea-
mon v. Brown. In Beamon, the plaintiffs claimed that “the
VA’s procedures for processing claims cause[d] unreasonable
delays, thereby violating their rights under the Administrative
Procedure Act . . . and under the Due Process Clause of the
Fifth Amendment.” 125 F.3d at 966. The Sixth Circuit held
that “the VJRA explicitly granted comprehensive and exclu-
sive jurisdiction to the [Veterans Court] and the Federal Cir-
cuit over claims seeking review of VA decisions that relate to
benefits decisions under § 511(a).” Id. at 971 (emphasis
added). The court therefore concluded that it could not hear
4846 VETERANS FOR COMMON SENSE v. SHINSEKI
“constitutional issues and allegations that a VA decision has
been unreasonably delayed” by the inadequacies of the VA’s
procedures. Id. Because adjudicating the plaintiffs’ claims
would require the district court to “review individual claims
for veterans’ benefits, the manner in which they were pro-
cessed, and the decisions rendered by the regional office of
the VA” and the Board of Veterans’ Appeals, “[t]his type of
review falls within the exclusive jurisdiction of the [Veterans
Court] as defined by [38 U.S.C.] § 7252(a).” Id. at 970-71.

[4] Synthesizing these cases, we conclude that § 511 pre-
cludes jurisdiction over a claim if it requires the district court
to review “VA decisions that relate to benefits decisions,”
Beamon, 125 F.3d at 971, including “any decision made by
the Secretary in the course of making benefits determina-
tions,” Broudy, 460 F.3d at 115. This standard is consistent
with Congress’s intention to “broaden the scope” of the judi-
cial preclusion provision, H.R. Rep. No. 100-963, at 27, 1988
U.S.C.C.A.N. at 5809, and is reflected in § 511(a)’s plain
statement that we may not review a “decision by the Secretary
under a law that affects the provision of [veterans’] benefits,”
38 U.S.C. § 511(a). 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 vet-
eran’s request for benefits, but also to those decisions that
may affect such cases. See Price, 228 F.3d at 422; Thomas,
394 F.3d at 974; Broudy, 460 F.3d at 114-15; accord Beamon,
125 F.3d at 971. If that test is met, then the district court must
cede any claim to jurisdiction over the case, and parties must
seek a forum in the Veterans Court and the Federal Circuit.

III. APPLICATION

In this case, we must determine whether VCS has raised
claims that involve “questions of law and fact necessary to a
decision by the Secretary under a law that affects the provi-
sion of benefits by the Secretary.” 38 U.S.C. § 511(a). Under
the VA’s regulations, “benefit” is defined as “any payment,
 VETERANS FOR COMMON SENSE v. SHINSEKI 4847
service, . . . or status, entitlement to which is determined
under laws administered by the Department of Veterans
Affairs pertaining to veterans and their dependents and survi-
vors.” 38 C.F.R. § 20.3(e). Here, VCS claims that delays in
the VHA’s provision of mental health care and the VBA’s
adjudication of service-related disability benefits violate the
VA’s statutory obligations to provide veterans with care and,
therefore, deprive veterans of “property” under the Due Pro-
cess Clause. Mental health care and disability compensation
are clearly “benefits,” so any “question of fact or law” that
“affects the provision of [them] by the Secretary” falls under
the ambit of § 511. Accordingly, we turn first to VCS’s vari-
ous mental health claims and then to VCS’s disability com-
pensation claims to determine whether the district court had
jurisdiction under § 511.

A. Mental Health Care Claims

VCS claims that delays in the VHA’s provision of mental
health care violate the APA and the Due Process Clause.15
VCS also requests the adoption of a formal appeals process to
allow veterans to challenge an administrator’s decision to
place a veteran on a wait list for mental health care, more
transparent clinical appeals procedures, and an expedited pro-
cedure for veterans presenting PTSD symptoms to receive
access to mental health care.16
15
The district court exercised jurisdiction but denied VCS’s APA claim
because, among other things, VCS’s claim did not pertain to a “final
agency action,” and thus could not be brought under the APA. Veterans,
563 F. Supp. 2d at 1059 (citing Norton, 542 U.S. at 64). The district court
denied VCS’s due process challenge to the VHA’s failure to provide
timely care on the merits because VCS “did not prove a systemic denial
or unreasonable delay in mental health care.” Id. at 1082. We do not
address these conclusions because we hold that the district court lacked
jurisdiction.
16
So, for example, VCS argues that the VA should be compelled to
implement remedial measures recommended in the VA’s Mental Health
Strategic Plan and the Feeley Memorandum. VCS claims that these mea-
sures would improve the circumstances of veterans experiencing delays in
the provision of mental health care, and the failure to adopt them violates
the Due Process Clause of the Fifth Amendment.
4848 VETERANS FOR COMMON SENSE v. SHINSEKI
[5] Section 511 undoubtedly would deprive us of jurisdic-
tion to consider an individual veteran’s claim that the VA
unreasonably delayed his mental health care. VCS attempts to
circumvent this jurisdictional limitation by disavowing relief
on behalf of any individual veteran, and instead proffering
evidence of average delays to demonstrate statutory and con-
stitutional violations.17 VCS emphasized in its complaint that
the “constitutional defects with the VA’s systems, as set forth
herein, are . . . divorced from the facts of any individual
claim.” Compl. ¶ 12. On appeal, VCS repeats that its claims
regarding average delays do not involve questions of law or
fact necessary to a decision about providing benefits to an
individual veteran.

VCS’s allegations bear a close resemblance to those made
by veterans’ organizations who “went out of their way to for-
swear any individual relief for” veterans in a challenge to the
VA’s adjudication of benefits appeals recently considered by
the D.C. Circuit. See Viet. Veterans of Am. v. Shinseki, 599
F.3d 654, 662 (D.C. Cir.), cert. denied, 131 S. Ct. 195 (2010).
There, much like here, the veterans’ organizations alleged that
“[n]othing in this complaint is intended as . . . an attempt to
obtain review of an individual determination by the VA or its
appellate system,” id. at 658 (internal quotation marks omit-
ted), and they submitted evidence of average delays in the
VA’s appellate process, id. at 657, 662. But, noting the plain-
tiffs’ “rather apparent effort to avoid the preclusive bite” of
17
For example, VCS alleges:
The facts herein pertaining to the [veterans and organizational
plaintiffs] are included for the specific purpose[ ] of . . . illustrat-
ing the Challenged VA Practices, and not for the purpose of
obtaining review of decisions by the VA or [the Veterans Court].
Nothing herein is intended or should be construed as an attempt
to obtain review of any decision relating to benefits sought by
any veteran . . . or to question the validity of any benefits deci-
sions made by the Secretary of the VA.
Compl. ¶ 39.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4849
§ 511(a), the D.C. Circuit concluded that, by disavowing
relief based on any individual veteran, the plaintiffs over-
looked the fact that “the average processing time does not
cause [veterans] injury; it is only their processing time that is
relevant.” Id. at 661-62. The court reasoned that even “assum-
ing the alleged ‘illegality’—that the average processing time
at each stage is too long—that illegality does not cause the
[plaintiffs] injury.” Id. at 662. This analysis led the D.C. Cir-
cuit to conclude that the plaintiffs lacked standing to pursue
their claims. Id. (“If the affiants were suing by themselves—
which is how we must analyze the claim—asserting that the
average time of processing was too long, it would be apparent
that they were presenting a claim not for themselves but for
others, indeed, an unidentified group of others. But one can
not have standing in federal court by asserting an injury to
someone else.”).

Here, it may be that VCS similarly does not have standing
for its claims, because a claim based on average harm seems
contrary to the Supreme Court’s requirement of a “particular-
ized” harm that “affect[s] the plaintiff in a personal and indi-
vidual way.” See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, 561 n.1 (1992). Nevertheless, because it is clear that
there is an independent statutory bar to our jurisdiction, we
need not reach the standing issue.

[6] The fact that VCS couches its complaint in terms of
average delays cannot disguise the fact that it is, fundamen-
tally, a challenge to thousands of individual mental health
benefits decisions made by the VA. In order to determine
whether the average delays alleged by VCS are unreasonable,
the district court would have to review the circumstances sur-
rounding the VA’s provision of benefits to individual veter-
ans. The district court does not acquire jurisdiction over
VCS’s complaint just because VCS challenges many benefits
decisions rather than a single decision. Indeed, an average
processing time tells us nothing about the causes for such pro-
cessing time. VCS alleges that the average processing time for
4850 VETERANS FOR COMMON SENSE v. SHINSEKI
mental health claims is too long, but the district court would
have no basis for evaluating that claim without inquiring into
the circumstances of at least a representative sample of the
veterans whom VCS represents; then the district court would
have to decide whether the processing time was reasonable or
not as to each individual case. Cf. Viet. Veterans of Am., 599
F.3d at 662; Price, 228 F.3d at 422.

Moreover, in order to provide the relief that VCS seeks, the
district court would have to prescribe the procedures for pro-
cessing mental health claims and supervise the enforcement of
its order. To determine whether its order has been followed,
the district court would have to look at individual processing
times. In addition to our general concern that “this approach
would have the federal courts as virtually continuing monitors
of the wisdom and soundness of Executive action,” Laird v.
Tatum, 408 U.S. 1, 15 (1972), it would embroil the district
court in the day-to-day operation of the VA and, of necessity,
require the district court to monitor individual benefits deter-
minations.

[7] In sum, there is no way for the district court to resolve
whether the VA acted in a timely and effective manner in
regard to the provision of mental health care without evaluat-
ing 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
VCS’s various claims for relief related to the VA’s provision
of mental health care, including its challenge to the lack of
procedures by which veterans may appeal the VA’s adminis-
trative scheduling decisions. See 38 U.S.C. § 511(a).18
18
Of course, to the extent that any individual veteran claims unreason-
able delay in the provision of his benefits, he may file a claim in the Veter-
ans Court, which has the power to “compel action of the Secretary
unlawfully withheld or unreasonably delayed.” 38 U.S.C. § 7261(a)(2);
see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (concluding that
its authority to “ ‘compel action of the Secretary unlawfully withheld or
 VETERANS FOR COMMON SENSE v. SHINSEKI 4851
B. Disability Benefits Claims

VCS next claims that the VA’s system for adjudicating vet-
erans’ eligibility for disability benefits suffers from uncon-
scionable delays and therefore violates the statutory and
constitutional rights of veterans. The district court concluded
that, because “determination of whether the delay [in benefits
adjudication] is unreasonable may depend on the facts of each
particular claim, § 511 prevents this Court from undertaking
such a review.” Veterans, 563 F. Supp. 2d at 1083-84 (citation
omitted).19 We agree with the district court for the same rea-

unreasonably delayed’ ” gave the Veterans Court authority to “remand the
claim with directions that the Secretary order an additional medical exami-
nation that complies with all pertinent statutory and regulatory require-
ments” (quoting 38 U.S.C. § 7261(a)(2))); cf. Ebert v. Brown, 4 Vet. App.
434, 436-37 (1993) (considering but denying as moot the claimant’s chal-
lenge to the VA’s two-year delay in the scheduling of medical appoint-
ments). Likewise, both the Veterans Court and the Federal Circuit have
confirmed their jurisdiction to hear challenges to administrative decisions
by the VHA that affect the provision of benefits to veterans, such as the
VHA “scheduling decisions” challenged by VCS. See E. Paralyzed Veter-
ans Ass’n v. Sec’y of Veterans Affairs, 257 F.3d 1352, 1358 (Fed. Cir.
2001) (holding that a veteran’s “right of appeal covers a challenge to the
priority [treatment] category to which the veteran has been assigned,” as
well as “ ‘decisions regarding enrollment and disenrollment’ ” in systems
providing for hospital and medical care (quoting Enrollment—Provision
of Hospital and Outpatient Care to Veterans, 64 Fed. Reg. 54,207, 54,211
(Oct. 6, 1999))); Meakin v. West, 11 Vet. App. 183, 187 (1998) (reversing
the Board’s conclusion that it lacked jurisdiction to resolve a veteran’s eli-
gibility for fee-basis medical care because, inter alia, such review would
require only “an administrative decision as to whether the VA facility is
capable of furnishing a previously determined course of care, services, or
treatment”); accord 38 C.F.R. § 20.101(b) (permitting Board review of
“questions of eligibility for hospitalization, outpatient treatment, . . . and
for other benefits administered by the [VHA]” that do not involve
“[m]edical determinations”).
19
The district court also concluded that resolving VCS’s claims would
“invariably implicate VA regulations,” Veterans, 563 F. Supp. 2d at 1084,
such as regulations requiring the VA to assist the veteran in collecting evi-
4852 VETERANS FOR COMMON SENSE v. SHINSEKI
son that we explained earlier with respect to delays in mental
health care—we simply lack jurisdiction.

[8] Like VCS’s challenge to delays in the VA’s provision
of mental health care, VCS’s challenge to delays in the VA’s
adjudication of veterans’ disability benefits plainly implicates
questions of law and fact regarding the appropriate method of
providing benefits to individual veterans. The district court
cannot decide such claims without determining whether the
VA acted properly in handling individual veterans’ benefits
requests at each point in the process. Section 511 deprives the
district court of jurisdiction over such questions.

In reaching this conclusion, we find ourselves in accord
with the Sixth Circuit, which resolved a similar question in
Beamon v. Brown. There, a group of veterans “asked the dis-
trict court to review the legality and constitutionality of the
procedures that the VA uses to decide benefits claims.” Bea-
mon, 125 F.3d at 970. The Sixth Circuit concluded that the
plaintiffs’ claims raised questions of law and fact regarding
the provision of benefits by the VA and that “[d]etermining
the proper procedures for claim adjudication is a necessary
precursor to deciding veterans benefits claims. Under
§ 511(a), the VA Secretary shall decide this type of question.”
Id. Because the plaintiffs alleged that “VA procedures cause
unreasonable delays” in the resolution of benefits claims,
“[t]o adjudicate this claim, the District Court would need to
review individual claims for veterans’ benefits, the manner in

dence, 38 C.F.R. § 3.159(c), and regulations establishing the procedural
requirements for an appeal, id. §§ 20.200-.202. Because “38 U.S.C. § 502
permits litigation of challenges to VA regulations only in the Federal Cir-
cuit,” the district court viewed § 502 as an independent bar to its jurisdic-
tion. Veterans, 563 F. Supp. 2d at 1084. Because we find § 511 controlling
and dispositive of VCS’s disability benefits claims, we express no view on
the impact of § 502.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4853
which they were processed, and the decisions rendered by the
regional office of the VA and the BVA.” Id. at 970-71.20

VCS claims that no such review is required here because it
challenges average delays in the adjudication of service-
related disability benefits (as opposed to delay in the process-
ing of any one individual claim). For reasons we previously
discussed, that is a distinction without difference. Whether the
average delays of which VCS complains are reasonable
depends on the facts of individual veterans’ claims, such as
the complexity of the claim (PTSD claims being some of the
most difficult to resolve), the severity of the disability, and the
20
The dissent’s answer to the jurisdictional question is to distinguish
between “direct or indirect challenges to actual benefit decisions,” which
the dissent agrees are beyond the district court’s jurisdiction, and “claims
that would have no effect on the substance of any actual benefit award,”
which the dissent argues are not precluded by § 511 and are the type of
claims raised by VCS here. Dissenting Op. at 4869-70; see also id. at 4869
(“Plaintiffs’ concern is not with the substance of any benefits decision.
Their concern is with process.”). VCS, even if it could, is not asking for
process for its own sake but rather process to ensure timely and accurate
benefits decisions. Cf. Gometz v. Henman, 807 F.3d 113, 116 (7th Cir.
1986) (“The right of access to the courts, like all procedural rights under
the due process clause of the fifth amendment, is an entitlement to enough
process to ensure a reasonable likelihood of an accurate result, not to pro-
cess for its own sake.”).
In this respect, VCS is much like the three veterans in Beamon who
sought to represent a “class of similarly-situated veterans, to challenge the
manner in which the [VA] processes claims for veterans’ benefits,” 125
F.3d at 966, which makes the dissent’s reliance on that case all the more
perplexing, Dissenting Op. at 4870-71. There, by the time the veterans’
appeal reached the Sixth Circuit, two of the representative plaintiffs had
received final decisions on the merits of their claims and the third was still
waiting for a final decision. Beamon, 125 F.3d at 966. Those plaintiffs
sought, like VCS here, to do more than merely litigate their individual
claims to conclusion; rather, they challenged the “legality and constitu-
tionality of the procedures that the VA uses to decide benefits claims.” Id.
at 970. The Sixth Circuit held exactly as we do here: “Determining the
proper procedures for claim adjudication is a necessary precursor to decid-
ing veterans benefits claims,” and “[u]nder § 511(a), the VA Secretary
shall decide this type of question.” Id.
4854 VETERANS FOR COMMON SENSE v. SHINSEKI
availability and quality of the evidence. As the district court
noted, “a veteran who raises seven or eight issues in his or her
claim will likely face a more protracted delay than a veteran
who raises only one or two issues.” Veterans, 563 F. Supp. 2d
at 1083. Because the district court lacks jurisdiction to review
the circumstances or decisions that created the delay in any
one veteran’s case, it cannot determine whether there has been
a systemic denial of due process due to unreasonable delay.21

VCS asserts that if the district court lacks jurisdiction to
hear its claims, then it will be unable to secure adequate relief
because compelling the VA to issue a decision on individual
benefits is not the same as curing the deficiencies that cause
widespread delay. To that end, VCS contends that the district
court must retain jurisdiction over its “challenge to the admin-
istrative gridlock plaguing the adjudication” of benefits
claims under the Supreme Court’s decision in Johnson v.
Robison, 415 U.S. 361. VCS notes that the drafters of § 511
recognized that Robison “was correct in asserting judicial
authority to decide whether statutes meet constitutional mus-
ter.” H.R. Rep. No. 100-963, at 22, 1988 U.S.C.C.A.N. at
5803.
21
VCS relies on the D.C. Circuit’s decision in Broudy, 460 F.3d at 115,
for the proposition that its challenge to the VA’s delays avoids the preclu-
sive effect of § 511. But Broudy does not support VCS’s position. Broudy
involved a challenge to the VA’s withholding of radiation test results and
the plaintiffs’ request for a release of those records and an injunction
against future misconduct. Id. at 109-10. The D.C. Circuit held that it had
jurisdiction over these claims only after finding that resolving them did
not require the district court “to decide whether any of the veterans whose
claims the Secretary rejected [we]re entitled to benefits” or to “revisit any
decision made by the Secretary in the course of making benefits determi-
nations.” Id. at 115 (emphasis added). Conversely, adjudicating VCS’s
claims here would require us to revisit the decisions the VA made in han-
dling a veteran’s request “in the course of making benefits determina-
tions.” Id. According to Broudy, such claims are beyond the district
court’s jurisdiction, and on this we agree.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4855
Although we discussed Robison in the context of § 511’s
history, it requires further discussion here. In Robison, a con-
scientious objector who completed alternative service was
denied veterans’ educational benefits under a program grant-
ing such benefits to persons who served full-time duty in the
Armed Forces. 415 U.S. at 362-64. He claimed that this vio-
lated the equal protection component of the Due Process
Clause. Id. at 364-65. The government argued that § 211, the
predecessor to § 511, deprived the district court of jurisdic-
tion. Id. Indeed, under the government’s view of § 211, no
court had jurisdiction to review the plaintiff’s equal protection
claims.22 Id. at 366.

The Supreme Court held that the district court had jurisdic-
tion. Although § 211 provided that “no court of the United
States shall have power or jurisdiction to review” the VA’s
decisions concerning veterans’ benefits, id. at 367 (internal
quotation marks omitted), the Court held that precluding fed-
eral court review of constitutional questions would “raise seri-
ous questions concerning the constitutionality of § 211(a),” id.
at 366 & n.8. The Court construed § 211 to bar only federal
review of challenges to “the administration” of the benefits
program. Id. at 367. Because the conscientious objector had
challenged Congress’s design on constitutional grounds,
§ 211’s preclusion of review of the Secretary’s actions did not
bar the exercise of jurisdiction.23 Id. Following Robison, the
22
Significantly, the Board of Veterans’ Appeals had “expressly dis-
claimed authority to decide constitutional questions.” Robison, 415 U.S.
at 368. Construing § 211 to preclude judicial review would have meant
that neither the VA nor any court would have been able to consider the
constitutional challenges.
23
In Moore v. Johnson, we concluded that Robison “established the
principle that 38 U.S.C. § 211(a) does not bar the determination by a fed-
eral court of the constitutionality of veterans’ benefits legislation.” 582
F.2d 1228, 1232 (9th Cir. 1978). We interpreted Robison to require an
examination of the “substance” of an action to determine whether it chal-
lenges a “decision of the Administrator on a ‘question of law or fact con-
cerning a benefit” provided by the VA, or instead challenges the
constitutionality of an act of Congress. Id. Under our precedent, “[o]nly
actions within the latter category are reviewable” under § 211. Devine v.
Cleland, 616 F.2d 1080, 1084 (9th Cir. 1980).
4856 VETERANS FOR COMMON SENSE v. SHINSEKI
Supreme Court confirmed that “district courts have jurisdic-
tion to entertain constitutional attacks on the operation of the
claims systems” under the precursor to § 511. Walters v. Nat’l
Ass’n of Radiation Survivors, 473 U.S. 305, 311 n.3 (1985).

Robison’s warning of “serious questions” concerning stat-
utes that preclude all judicial review is of limited application
here. First, the fact that VCS drapes its claims in constitu-
tional terms is not itself sufficient to confer jurisdiction on us.
Numerous courts have recognized that § 511 broadly divests
district courts of jurisdiction over constitutional claims related
to benefits even where those claims concern agency proce-
dures and do not challenge specific VA benefits determina-
tions. See, e.g., Beamon, 125 F.3d at 971 (“[T]he VJRA
explicitly granted comprehensive and exclusive jurisdiction to
the CVA and the Federal Circuit over claims seeking review
of VA decisions that relate to benefits decisions under
§ 511(a). This jurisdiction includes constitutional issues
. . . .”); Hall v. U.S. Dep’t Veterans’ Affairs, 85 F.3d 532, 535
(11th Cir. 1996) (per curiam) (holding that a direct constitu-
tional challenge to a VA regulation must be brought in the
Federal Circuit); Hicks, 961 F.2d at 1370 (“These provisions
amply evince Congress’s intent to include all issues, even
constitutional ones, necessary to a decision which affects ben-
efits in this exclusive appellate review scheme.”); Addington
v. United States, 94 Fed. Cl. 779, 783 (2010) (“The exclusive
remedy for claims of due process violations lies in the [Veter-
ans Court].”).

More importantly, nothing in the VJRA forecloses judicial
review of constitutional questions as VCS suggests. After
Robison read § 211 broadly, Congress “subsequently estab-
lished the [Veterans Court], effectively stripping district
courts of any such jurisdiction,” Beamon, 125 F.3d at 973 n.4;
cf. Bates, 398 F.3d at 1364 (explaining that the VJRA’s “spe-
cialized review process” exchanged court review for “inde-
pendent judicial review of the [VA]’s final decisions by a new
Article I Court”). But Congress did not leave veterans without
 VETERANS FOR COMMON SENSE v. SHINSEKI 4857
a forum for their constitutional claims. When Congress cre-
ated the Veterans Court, it expressly empowered that court to
“decide all relevant questions of law, interpret constitutional,
statutory, and regulatory provisions, and determine the mean-
ing or applicability of the terms of an action of the Secretary.”
38 U.S.C. § 7261(a)(1) (emphasis added). That same statute
leaves no doubt that the Veterans Court has the authority to
adjudicate veterans’ constitutional claims that benefits have
been “unlawfully withheld or unreasonably delayed.” Id.
§ 7261(a)(2); Vietnam Veterans of Am., 599 F.3d at 659-60 &
n.6; see also Beamon, 125 F.3d at 968 (finding that the Veter-
ans Court “has the power to provide adequate relief for the
plaintiffs” seeking to challenge the VA’s “unreasonably
delayed benefits decisions”). The Veterans Court’s power is
such that its orders not only affect how a single veteran’s
claim is handled, but will dictate how similar claims are han-
dled by the VA in the future. See Beamon, 125 F.3d at 970
(“Plaintiffs may bring their claims individually, and the [Vet-
erans Court]’s decisions of individual claims will have a bind-
ing effect on the manner in which the VA processes
subsequent veterans’ claims.”). That power, together with the
authority to issue extraordinary writs pursuant to the All Writs
Act, 28 U.S.C. § 1651(a); see Vietnam Veterans of Am., 599
F.3d at 659-60 & n.6; see also Erspamer, 1 Vet. App. at 7,
makes the Veterans Court an adequate forum for this type of
claim.

Beyond the Veterans Court, Congress also ensured that an
Article III court can review such claims. Congress granted the
Court of Appeals for the Federal Circuit the “exclusive juris-
diction to review and decide any challenge to the validity of
any statute or regulation or any interpretation thereof brought
under this section, and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a deci-
sion.” 38 U.S.C. § 7292(c). To drive the point home, Con-
gress affirmed that the Federal Circuit “shall decide all
relevant questions of law, including interpreting constitutional
and statutory provisions.” Id. § 7292(d)(1). In tandem, the
4858 VETERANS FOR COMMON SENSE v. SHINSEKI
availability of review by both the Veterans Court and the Fed-
eral Circuit evinces Congress’s intent to protect the federal
courts and the VA from time-consuming veterans’ benefits lit-
igation, while providing a specialized forum wherein complex
decisions about such benefits can be made. Congress has fully
answered the Supreme Court’s “serious question” concerning
the constitutionality of § 511’s limitation on our jurisdiction.

[9] In sum, Congress may have foreclosed our review of
the VA’s decisions related to claims adjudication, but it has
not foreclosed federal judicial review in toto.24 Whatever “se-
rious questions,” Robison, 415 U.S. at 366, might arise if
Congress were to preclude all review of constitutional chal-
lenges, there can be no question that Congress may eliminate
our jurisdiction to review the VA’s decisions, while preserv-
ing such review elsewhere. U.S. Const. art. III, § 2, cl. 2. As
the Supreme Court stated in Lockerty v. Phillips, “[t]he Con-
gressional power to ordain and establish inferior courts
includes the power ‘of investing them with jurisdiction either
limited, concurrent, or exclusive, and of withholding jurisdic-
tion from them in the exact degrees and character which to
Congress may seem proper for the public good.’ ” 319 U.S.
182, 187 (1943) (quoting Cary v. Curtis, 44 U.S. (3 Howe)
236, 245 (1845)). We lack jurisdiction over VCS’s claims
challenging delays in the VA’s adjudication of service-related
disability benefits.

C. Regional Office Procedures

[10] VCS argues that there is a lack of adequate proce-
dures when veterans file their claims for service-related dis-
24
Although the dissent accuses us of “leav[ing] millions of veterans”
without an available remedy to address delays affecting benefits determi-
nations, it has failed to acknowledge (let alone analyze) the versatility of
the VA system. Dissenting Op. at 4868. The dissent is correct that there
is a “forum” available for veterans to challenge the operation of the VA
system, id., but that forum does not involve the district court.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4859
ability benefits at VA Regional Offices. In its complaint, VCS
framed this claim as a challenge to the constitutionality of the
VJRA, claiming that the statutes codified by the act deny vet-
erans adequate procedural safeguards. See Compl. ¶ 202
(“The VJRA violates Plaintiffs’ due process rights in a multi-
tude of respects . . . .”). On appeal, VCS argues that its mem-
bers are denied due process because existing procedures do
not provide necessary protections to veterans during the initial
claims process. Procedures that VCS wishes to see imple-
mented include a pre-decision hearing, discovery and sub-
poena power, and the retention of paid counsel to assist in the
submission of an initial claim. The district court denied this
claim on the merits, holding that the VA’s procedures did not
violate the Due Process Clause of the Fifth Amendment. Vet-
erans, 563 F. Supp. 2d at 1088-89. We agree with the district
court.

1. Jurisdiction

The jurisdictional question is a complex and close one, but
we conclude that we have jurisdiction over these claims. As
we have discussed, we lack jurisdiction either if § 511 prohib-
its our jurisdiction, or if review of VCS’s claim is entrusted
to the exclusive review mechanism established by the VJRA.
We first hold that § 511 does not bar our jurisdiction to con-
sider this claim. We then conclude that VCS’s claim does not
fall within the exclusive jurisdiction of the Veterans Court or
the Federal Circuit.

First, VCS has carefully structured its complaint to avoid
§ 511’s preclusive effect. As pled, VCS asserts a facial chal-
lenge to the constitutionality of the VJRA based not on any
average delays experienced by veterans, but on the absence in
the statute of certain procedures VCS claims are necessary to
safeguard veterans’ rights. Were the former 38 U.S.C. § 211
applicable here, there is little doubt that we would have juris-
diction to hear this claim because the Supreme Court held that
facial constitutional challenges were exempted from § 211’s
4860 VETERANS FOR COMMON SENSE v. SHINSEKI
jurisdictional preclusion. See Robison, 415 U.S. at 366-74.
But since the enactment of the VJRA, the courts of appeals
appear split on the issue of whether that portion of Robison’s
analysis survives the VJRA. We question, however, whether
these courts have thoroughly analyzed the efforts Congress
undertook to broaden § 511 and the concurrent effort it took
to establish an exclusive review scheme for claims related to
veterans’ benefits. The Second and Fifth Circuits, as well as
the Veterans Court, have affirmed that facial constitutional
challenges to acts of Congress—including challenges brought
by individual claimants—may be brought in federal district
court despite § 511’s broad preclusive mandate. See, e.g.,
Zuspann, 60 F.3d at 1159 (addressing whether the claimant’s
“complaint challenges the VA’s decision to deny him bene-
fits, or whether it makes a facial challenge to an act of Con-
gress”); Larrabee ex rel. Jones, 968 F.2d at 1500 (the VJRA
“precludes judicial review of non-facial constitutional
claims”); Disabled Am. Veterans, 962 F.2d at 141 (same);
Dacoron v. Brown, 4 Vet. App. 115, 119 (1993). The Eighth
Circuit appears to have taken a different view. See Hicks, 961
F.2d at 1369-70 (concluding that provisions of the VJRA
“amply evince Congress’s intent to include all issues, even
constitutional ones, necessary to a decision which affects ben-
efits in [an] exclusive appellate review scheme”); see also
Hall, 85 F.3d at 534-35 (recognizing that “[t]he Eighth Circuit
Court of Appeals appears to have taken a different view” as
to whether Robison’s preservation of facial constitutional
challenges survives the VJRA). And in the case most analo-
gous to the claims presented here, Beamon v. Brown, the
Sixth Circuit appears to have equivocated on the matter, hold-
ing that “district court jurisdiction over facial challenges to
acts of Congress survived [§ 511],” 125 F.3d at 972, yet con-
cluding that “Congress . . . effectively stripp[ed] district
courts of any such jurisdiction” over “constitutional attacks on
the operation of the claims system,” id. at 973 n.4 (internal
quotation marks omitted). Beamon, however, involved a puta-
tive class action brought by three veterans challenging delays
 VETERANS FOR COMMON SENSE v. SHINSEKI 4861
in the processing of veterans’ benefits, id. at 966, and the
Sixth Circuit concluded that the plaintiffs’ own claims could
be brought in the Veterans Court, id. at 972-74.

[11] Ultimately, we need not decide whether an individual
seeking benefits would be barred by § 511 from bringing a
facial constitutional challenge in the district court. The imme-
diate question before us is whether VCS’s challenge to the
VJRA is similar to its claims challenging the conduct of the
VHA and the delays in adjudication of service-related disabil-
ity claims, which we have already concluded would require
review of the circumstances of individual requests for benefits
by veterans. Unlike those previous claims, reviewing the
VA’s procedures for filing and handling benefits claims at the
Regional Offices does not require us to review “decisions”
affecting the provision of benefits to any individual claimants.
38 U.S.C. § 511; see also id. § 5104 (requiring notice to a vet-
eran of a “decision by the Secretary under section 511 of this
title affecting the provision of benefits to a claimant”).
Indeed, VCS does not challenge decisions at all. A consider-
ation of the constitutionality of the procedures in place, which
frame the system by which a veteran presents his claims to the
VA, is different than a consideration of the decisions that
emanate through the course of the presentation of those
claims. In this respect, VCS does not ask us to review the
decisions of the VA in the cases of individual veterans, but to
consider, in the “generality of cases,” the risk of erroneous
deprivation inherent in the existing procedures compared to
the probable value of the additional procedures requested by
VCS. See Mathews v. Eldridge, 424 U.S. 319, 344 (1976).
Evaluating under the Due Process Clause the need for sub-
poena power, the ability to obtain discovery, or any of the
other procedures VCS requests is sufficiently independent of
any VA decision as to an individual veteran’s claim for bene-
fits that § 511 does not bar our jurisdiction.25
25
To that extent, VCS’s claim bears a close resemblance to other due
process challenges we are institutionally competent to evaluate, for exam-
4862 VETERANS FOR COMMON SENSE v. SHINSEKI
Second, unlike VCS’s challenge to delays in the adminis-
tration of the benefits program, the exclusive review scheme
established by the VJRA in 38 U.S.C. §§ 7252, 7261, and
7292 does not deprive us of jurisdiction over this claim.
Although an individual veteran may challenge “VA proce-
dures during the adjudication of individual claims contesting
delayed benefits decisions,” Beamon, 125 F.3d at 969, in the
Veterans Court or the Federal Circuit, the VJRA does not pro-
vide a mechanism by which the organizational plaintiffs here
might challenge the absence of system-wide procedures,
which they contend are necessary to afford due process. This
case does not involve individual veterans seeking to challenge
the lack of procedures in place at VA Regional Offices, but
rather organizations representing their members claiming a
system-wide risk of erroneous deprivation. See Dacoron, 4
Vet. App. at 119 (noting that constitutional challenges could
be “presented to this Court only in the context of a proper and
timely appeal taken from such decision made by the VA Sec-
retary through the [Board]”). In other words, because VCS
cannot bring its suit in the Veterans Court, that court cannot
claim exclusive jurisdiction over the suit. Because VCS
would be unable to assert its claim in the review scheme
established by the VJRA, see 38 U.S.C. §§ 7252, 7261, 7292,
that scheme does not operate to divest us of jurisdiction.26

ple, whether the lack of notice or a hearing requires us to order specific
procedures capable of implementation, see Goldberg v. Kelly, 397 U.S.
254, 285 (1970); see also Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 18-19 (1978) (hearing required before terminating utilities for non-
payment); Gagnon v. Scarpelli, 411 U.S. 778, 789-91 (1973) (there is no
automatic right to an attorney at probation revocation hearings), or
whether any process is due in the first place, e.g., Ingraham v. Wright, 430
U.S. 651, 680-82 (1977) (due process does not require a hearing before
corporal punishment is inflicted); Goss v. Lopez, 419 U.S. 565, 581-83
(1975) (requiring a hearing before a student is suspended or as soon there-
after as practicable).
26
Even if an individual veteran could raise these claims in an appeal in
the Veterans Court or the Federal Circuit, that fact alone does not deprive
us of jurisdiction here. The Veterans Court has exclusive jurisdiction over
decisions of the Board of Veterans’ Appeals, not over every issue capable
of being raised in an appeal from the Board. See 38 U.S.C. § 7252(a).
 VETERANS FOR COMMON SENSE v. SHINSEKI 4863
[12] We conclude that we have jurisdiction over VCS’s
claim related to procedures affecting adjudication of claims at
the Regional Office level. We are not precluded from exercis-
ing jurisdiction by either § 511 or the provisions conferring
exclusive jurisdiction on the Veterans Court and the Federal
Circuit.

2. Merits

[13] Satisfied of our jurisdiction, we turn to the merits of
this claim. We affirm the district court because the non-
adversarial procedures at the Regional Office level are suffi-
cient to satisfy due process. The district court conducted an
analysis of the Mathews v. Eldridge factors and ruled that
although “veterans and their families have a compelling inter-
est in” their benefits, and “the consequences of erroneous
deprivation can be devastating,” the risk of error was low and
the government’s interest weighed strongly in favor of deny-
ing VCS the additional procedures requested.27 Veterans, 563
F. Supp. 2d at 1087-88.

We agree with the district court’s analysis on this point and
reproduce it here:

Under the Mathews factors, the current system for
adjudicating veterans’ [disability] claims satisfies
due process. It is without doubt that veterans and
their families have a compelling interest in receiving
disability benefits and that the consequences of erro-
neous deprivation can be devastating. In looking at
the totality of [disability] claims, however, the risk
of erroneous deprivation is relatively small. 11% of
27
In evaluating whether a procedure satisfies due process, courts balance
(1) the private interest; (2) the risk of erroneous deprivation and the likely
value, if any, of extra safeguards; and (3) the government’s interest, espe-
cially in avoiding the burden any additional safeguards would impose.
Mathews, 424 U.S. at 335.
4864 VETERANS FOR COMMON SENSE v. SHINSEKI
veterans file Notices of Disagreement upon adjudica-
tion of their claims by [Regional Offices]. Only 4%
proceed past the NOD to a decision by the [Board].
Thus, while the avoidable remand rates at the VA are
extraordinarily high, only 4% of veterans who file
benefits claims are affected. Plaintiffs here “confront
the constitutional hurdle posed by the principle
enunciated in cases such as Mathews to the effect
that a process must be judged by the generality of
cases to which it applies, and therefore, process
which is sufficient for the large majority of a group
of claims is by constitutional definition sufficient for
all of them.” Walters v. Nat’l Ass’n of Radiation Sur-
vivors, 473 U.S. 305, 330 (1985).

Moreover, although the additional safeguards
Plaintiffs seek would likely reduce the number of
avoidable remands and erroneous deprivations, the
fiscal and administrative burdens of these additional
procedural requirements are significant. Plaintiffs
seek, in essence, to transform the claims adjudication
process at the [Regional Office] level from an osten-
sibly non-adversarial proceeding into one in which
the full panoply of trial procedures that protects civil
litigants is available to veterans. For example, Plain-
tiffs seek the general right of discovery, including
the power to subpoena witnesses and documents, the
ability to examine and cross-examine witnesses, the
ability to pay an attorney, and the right to a hearing.
Implementation and maintenance of such a system
would be costly in terms of the resources and man-
power that the VA would need to commit to the
[Regional Office] proceedings.

Id. (footnotes omitted).

[14] We emphasize, as the district court did, that Congress
purposefully designed a non-adversarial system of benefits
 VETERANS FOR COMMON SENSE v. SHINSEKI 4865
administration. See Walters, 473 U.S. at 323-24 (VA matters
should be kept “as informal and nonadversarial as possible”);
see also Nat’l Ass’n of Radiation Survivors v. Derwinski, 994
F.2d 583, 588-89 (9th Cir. 1992) (“[I]n passing the [V]JRA
Congress reaffirmed the government’s interest [in an informal
benefits administration system] . . . .”). This is particularly
true as it pertains to the retention of counsel during the initial
claim phase, which the Supreme Court found “would seri-
ously frustrate the oft-repeated congressional purpose” to
maintain the non-adversarial bent of benefits administration.
Walters, 473 U.S. at 323. Although VCS challenges more
procedural restrictions than just the lack of an attorney at the
Regional Office stage, the Supreme Court’s analysis in Wal-
ters compels a similar outcome. Subpoena power, discovery,
pre-decision hearings, and the presence of paid attorneys
would transform the VA’s system of benefits administration
into an adversarial system that would tend to reflect the rigor-
ous system of civil litigation that Congress quite plainly
intended to preclude. The choice between a vigorously adver-
sarial system and a less adversarial one reflects serious policy
considerations and is a permissible one. Congress must be
afforded “considerable leeway to formulate” additional pro-
cesses and procedures to cure deficiencies in the VA’s admin-
istration of benefits “without being forced to conform to a
rigid constitutional code of procedural necessities.” Walters,
473 U.S. at 326. Because VCS cannot overcome the para-
mount interest Congress has in preserving a non-adversarial
system of veterans’ benefits administration, we affirm the dis-
trict court’s ruling.

IV. CONCLUSION

VCS’s complaint sounds a plaintive cry for help, but it has
been misdirected to us. As much as we may wish for expedi-
tious improvement in the way the VA handles mental health
care and service-related disability compensation, we cannot
exceed our jurisdiction to accomplish it. The Constitution
“protects us from our own best intentions” by “divid[ing]
4866 VETERANS FOR COMMON SENSE v. SHINSEKI
power among sovereigns and among branches of government
precisely so that we may resist the temptation to concentrate
power in one location as an expedient solution to the crisis of
the day.” New York v. United States, 505 U.S. 144, 187
(1992). There can be no doubt that securing exemplary care
for our nation’s veterans is a moral imperative. But Congress
and the President are in far better position “to care for him
who shall have borne the battle, and for his widow and his
orphan.” Abraham Lincoln, President of the United States of
America, Second Inaugural Address (Mar. 4, 1865), available
at http://www.loc.gov/rr/program/bib/ourdocs/Lincoln2nd
.html. We would work counter to the political branches’ own
efforts by undertaking the type of institutional reform that
VCS requests. Such responsibilities are left to Congress and
the Executive, and to those specific federal courts charged
with reviewing their actions; that is the overriding message of
the VJRA, and it is one that we must respect here.

We conclude that the district court lacks jurisdiction to
reach VCS’s statutory and due process challenges to the
alleged delays in the provision of mental health care and to
the absence of procedures to challenge such delays. We like-
wise conclude that the district court lacks jurisdiction to reach
VCS’s claims related to delays in the adjudication of service-
related disability benefits. We conclude that the district court
has jurisdiction to consider VCS’s challenges to the alleged
inadequacy of the procedures at the Regional Office level, and
properly exercised that jurisdiction to deny VCS’s claim on
the merits.28

AFFIRMED in part, REVERSED in part, and
28
VCS contends that the district court erred in refusing to compel dis-
covery of additional instances of suicide incident briefs (some of which
had already been produced) and refusing to compel a response to an inter-
rogatory seeking the average number of days PTSD claims take at the
Regional Office level. But because we have disposed of VCS’s claims, we
do not reach VCS’s challenge to the district court’s discovery rulings.
 VETERANS FOR COMMON SENSE v. SHINSEKI 4867
REMANDED with instructions to DISMISS. The panel opin-
ion, Veterans for Common Sense v. Shinseki, 644 F.3d 845
(9th Cir. 2011), is hereby VACATED and shall not be cited
as precedent by or to any court of the Ninth Circuit. Costs on
appeal awarded to Defendants-Appellees.

SCHROEDER, Senior Circuit Judge, dissenting:

“Let me see if I’ve got this straight: in order to be
grounded, I’ve got to be crazy and I must be crazy
to keep flying. But if I ask to be grounded, that
means I’m not crazy any more and I have to keep
flying.” Catch-22 (Paramount Pictures 1970), adap-
tation of the novel by Joseph Heller (1961).

I agree with the majority’s holding that the district court
had jurisdiction to consider the claim brought by the plaintiff-
veterans organizations that the procedures used in the han-
dling of the initial filing of benefits claims are inadequate. I
further agree with affirming the denial of that claim on the
merits, because what Plaintiffs seek is inconsistent with the
congressional purpose of simplified, nonadversarial proceed-
ings. See Walters v. Nat’l Assoc. of Radiation Survivors, 473
U.S. 305 (1985).

Because I agree with the majority’s holding that there is
jurisdiction to consider that claim of inadequate procedures,
however, I am confounded by the majority’s holding that the
district court lacked jurisdiction to consider claims that other
procedural inadequacies are causing intolerable systemic
delays in the VA’s processing of benefits claims and in pro-
viding mental health services. While review of substantive
benefits decisions is, of course, limited to the Court of
Appeals for Veterans Claims (the “Court of Veterans
Appeals”) and the Federal Circuit under 38 U.S.C. § 511, the
4868 VETERANS FOR COMMON SENSE v. SHINSEKI
claims of systemic delay do not, in my view, require any
review of the VA’s actual benefits decisions.

The majority thus leaves millions of veterans—present,
past, and future—without any available redress for claims that
they face years of delay in having their rights to hard-earned
benefits determined. No one could think this is just or what
Congress intended.

The language and history of § 511 demonstrate instead to
me that Congress did not leave veterans without any forum to
challenge the way the system is operating. The district court
should be able to hear a systemic challenge, because § 511
does not pertain to such a challenge. Section 511 is about
actual benefits decisions. It refers to “questions of law and
fact necessary to a decision by the Secretary.” It then provides
that the “decision of the Secretary as to any such question”
shall be subject only to review by the veterans courts and Fed-
eral Circuit. See 38 U.S.C. §§ 7104(a), 7252(a), 7266(a),
7292(a). The purpose of the administrative veterans courts is
to decide whether individual veterans are entitled to benefits.
The statute therefore must be referring to an actual decision
by the Secretary granting or denying benefits.

This is apparent from Congress’ use of the term “decision”
in the provision that requires the Secretary to give a claimant
notice “of a decision by the Secretary under section 511 of
this title affecting the provision of benefits to a claimant.” 38
U.S.C. § 5104(a). This must mean a decision granting or
denying benefits. It cannot include a decision to delay making
a decision. Yet that is the senseless majority conclusion. See
slip op. at 4846, 4853 n. 20.

Plaintiffs do not challenge any “decision of the Secretary.”
Plaintiffs seek injunctive relief affecting the procedures that
the Regional Offices, the Board of Veterans Appeals, and the
Court of Veterans Appeals utilize to process and decide
claims. The complaint alleges a denial of due process because
 VETERANS FOR COMMON SENSE v. SHINSEKI 4869
allegedly unreasonable delays deprive Plaintiffs’ members of
property, i.e. benefits, without due process of law. Such a
claim can be established by showing that there is a risk of
wrongful deprivation. See Mathews v. Eldridge, 424 U.S. 319,
335 (1976). Accordingly, I conclude the district court had
jurisdiction to consider all of the claims alleged in Plaintiffs’
complaint.

The fundamental flaw in the majority’s reasoning is its mis-
taken assumption that adjudication of Plaintiffs’ systemic
delay claims requires individualized examination of actual
benefits determinations. Plaintiffs’ concern is not with the
substance of any benefits decision. Their concern is with pro-
cess. Courts have routinely considered claims that excessive
delay has resulted in a denial of due process. See, e.g., Cleve-
land Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985)
(delay of administrative hearing would at some point become
a constitutional violation); Fusari v. Steinberg, 419 U.S. 379,
389 (1975) (length of delay important factor); Kraebel v. NYC
Dep’t of Housing Pres. and Dev., 959 F.2d 395, 405 (2d Cir.
1992); Schroeder v. City of Chicago, 927 F.2d 957, 960 (7th
Cir. 1991) (“Justice delayed is justice denied, the saying goes:
and at some point delay must ripen into deprivation, because
otherwise a suit alleging deprivation would be forever prema-
ture”); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990)
(delay in state appeal); Rodrigues v. Donovan, 769 F.2d 1344,
1348-49 (9th Cir. 1985); Kelly v. R.R. Ret. Bd., 625 F.2d 486,
490-91 (3d Cir. 1980) (four year delay in reviewing disability
application). Indeed, the district court did decide the merits of
Plaintiffs’ claim of unreasonable delay in the VA’s provision
of mental health services, and a majority of the three-judge
panel held it should have fashioned some relief. Veterans for
Common Sense v. Shinseki, 644 F.3d 845, 878 (9th Cir. 2011).

There may be sound reasons for courts to be wary of
intruding too much on the day-to-day operation of the execu-
tive branch. See Heckler v. Day, 467 U.S. 104 (1984). But
§ 511 should not be an absolute bar to district court jurisdic-
4870 VETERANS FOR COMMON SENSE v. SHINSEKI
tion for claims of due process denials on account of systemic
delay. The principle which the majority announces for its con-
trary holding is that because of § 511, veterans cannot bring
any constitutional challenge in district court that might affect
a benefits decision, including the way it is processed. The
case law does not support that principle.

The case law, as I understand it, reflects a clear delineation
between claims that represent direct or indirect challenges to
actual benefits decisions, and for which district court jurisdic-
tion is lacking, and claims that would have no effect on the
substance of any actual benefit award, and thus where § 511
is no bar. In the Ninth Circuit, our decisions in Chinnock v.
Turnage, 995 F.2d 889 (9th Cir. 1993), and Hicks v. Small, 69
F.3d 967 (9th Cir. 1995), represent direct and indirect chal-
lenges to actual benefits decisions, where we properly found
that district court jurisdiction was lacking. In Chinnock, the
plaintiff-veteran brought a direct challenge in district court to
the denial of his benefits by asking that court to review the
VA’s interpretation of a regulation that resulted in the denial.
995 F.2d at 890. We held the district court lacked jurisdiction.
Id. In Hicks, the plaintiff filed a Bivens action in district court
against a VA doctor for conduct that allegedly reduced his
benefits, and we held this was also a challenge, albeit indirect,
to the denial of benefits. 69 F.3d at 968-70. In contrast, we
have held that a veteran can sue in district court for tort claims
unrelated to his benefits determination. See Littlejohn v.
United States, 321 F.3d 915 (9th Cir. 2003). In Littlejohn, the
plaintiff brought a Federal Tort Claims Act (“FTCA”) action
against VA doctors for negligence. Id. at 918. We held there
was jurisdiction because adjudication of the tort claim would
have no effect on his benefits award. Id. at 921.

The decisions of other circuits are in accord. In Weaver v.
United States, 98 F.3d 518, 520 (10th Cir. 1996), the Tenth
Circuit held that where the veteran tried to sue the VA for
conspiracy and fraud in concealing records that resulted in a
denial of benefits, the district court lacked jurisdiction. Like
 VETERANS FOR COMMON SENSE v. SHINSEKI 4871
our decision in Hicks, Weaver reflected an indirect challenge
to the denial of benefits. The Eighth Circuit in In re Russell,
155 F.3d 1012 (8th Cir. 1998) (per curiam), refused to issue
a writ of mandamus to require the VA courts to act on a
request for benefits pending in the Court of Veterans Appeals.
Relying on Beamon v. Brown, 125 F.3d 965, 974 (6th Cir.
1997), the Russell court reasoned that under the Veterans
Judicial Review Act and the All Writs Act, only the Court of
Veterans Appeals and Federal Circuit had the power to
require the VA to act with respect to a particular claim for
benefits. 155 F.3d at 1012-13.

Beamon is relied upon by the majority to support its hold-
ing, but Beamon is, in fact, consistent with my understanding
of the cases. Beamon concerned a claim in the district court
for injunctive relief by plaintiffs who were pursuing their
individual claims for benefits in the VA administrative courts.
125 F.3d at 966. The Sixth Circuit held that under § 511, the
plaintiffs’ avenue of relief from the delay in each of their
cases was to seek a writ of mandamus from the Court of Vet-
erans Appeals pursuant to the All Writs Act, 28 U.S.C.
§ 1651(a). See Beamon, 125 F.3d at 968-70. The Sixth Cir-
cuit, however, did not view the plaintiffs’ allegations to be a
systemic due process challenge similar to the one before us.
It characterized the plaintiffs’ “bare allegations” of procedural
delays as being “closer to challenges to individual benefit
decisions than a constitutional” attack on VA procedures. Id.
at 973 n.5. That is why I believe it does not support the major-
ity’s conclusion that Plaintiffs here cannot sue for the sys-
temic denial of due process. As the majority does recognize,
slip op. at 4862-63, the plaintiffs in Beamon were individuals
whose interests were primarily personal and not, as here,
organizations whose concerns must reflect the operation of
the system in all cases. Thus although the majority attempts
to draw from the cases a rule that any claim concerning the
VA’s conduct during benefits proceedings is outside the juris-
diction of the district court, the cases actually establish only
that challenges to particular benefits decisions cannot be
4872 VETERANS FOR COMMON SENSE v. SHINSEKI
brought in district court and must be brought in the VA
administrative courts.

The federal courts have, in fact, repeatedly entertained
challenges to statutes or procedures affecting the conduct of
VA claims adjudication. The Second Circuit in Disabled
American Veterans v. U.S. Department of Veterans Affairs,
962 F.2d 136, 137-38 (2d Cir. 1992), considered an equal pro-
tection challenge to a statute that eliminated the availability of
veterans’ family benefits in certain circumstances. The Sec-
ond Circuit held there was jurisdiction to consider the equal
protection challenge, because consideration of such a consti-
tutional claim did not involve review of any individual bene-
fits determination. Id. at 140-41; see also Larrabee ex rel.
Jones, 968 F.2d 1497, 1501 (2d Cir. 1992) (rejecting a chal-
lenge of inadequate care and noting that “district courts con-
tinue to have jurisdiction to hear facial challenges of
legislation affecting veterans’ benefits” (internal quotation
marks and citation omitted) (emphasis in original)); Zuspann
v. Brown, 60 F.3d 1156, 1159 (5th Cir. 1995) (district court
would have jurisdiction over a facial challenge to an act of
Congress).

Applying a similar principle, the D.C. Circuit in Broudy v.
Mather, 460 F.3d 106, 108, 115 (D.C. Cir. 2006), held the
district court had jurisdiction to consider claims of veterans
who contended VA officials denied them their constitutional
right of meaningful access to administrative proceedings. The
veterans alleged the VA withheld accurate information about
their exposure to radiation and thereby rendered access to VA
administrative proceedings meaningless. Id. at 108-11. Juris-
diction existed because the case was “not about whether they
should have received Government compensation for their
sickness,” but whether they were denied meaningful access to
administrative proceedings before the VA. Id. at 108.

The D.C. Circuit’s decision in Broudy is particularly
instructive here, because the court there reviewed its prior
 VETERANS FOR COMMON SENSE v. SHINSEKI 4873
decisions in Price v. United States, 228 F.3d 420 (D.C. Cir.
2000) (per curiam), and Thomas v. Principi, 394 F.3d 970
(D.C. Cir. 2005). These are decisions on which the majority
here relies in concluding that § 511 has nearly universal
sweep. Yet, as Broudy recognized, those cases actually con-
cern attempts to second guess actual benefits determinations.
See 460 F.3d at 114-15.

In Price, an individual veteran filed a complaint in the dis-
trict court alleging that the VA wrongfully failed to reimburse
him for certain medical expenses. 228 F.3d at 421. The D.C.
Circuit held that even construing his complaint as alleging a
federal tort claim for intentional or negligent failure to pay
medical bills, the district court lacked jurisdiction because the
plaintiff was indirectly seeking review of his benefits determi-
nation. Id. at 422. This was because “a necessary predicate of
[the plaintiff’s] claim [was] a determination that the [VA]
acted in bad faith.” Id. Since determining whether the VA
acted in bad faith, or was negligent, would require the district
court to determine first whether the VA acted properly in han-
dling Price’s request for reimbursement, i.e. awarded proper
benefits, judicial review was foreclosed by § 511(a). Id. The
court explained that “the district court lacked jurisdiction to
consider [the plaintiff’s] federal claim because the underlying
claim [was] an allegation that the VA unjustifiably denied
him a veterans’ benefit.” Id. at 421.

Similarly, in Thomas, the VA had denied an individual vet-
eran’s claim for benefits, and the plaintiff-veteran filed a fed-
eral tort claim in district court. 394 F.3d at 972. He alleged
claims that the VA committed medical malpractice by failing
to inform him that he had a mental illness and in failing to
provide him with medical services appropriate for his condi-
tion. Id. The court, following Price, held that only those alle-
gations that the VA deprived him of medical care were barred
by § 511, because review of such claims would require the
“district court to determine first whether the VA acted prop-
erly in providing Thomas benefits.” Id. at 974-75 (quoting
4874 VETERANS FOR COMMON SENSE v. SHINSEKI
Price, 228 F.3d at 422). The court held it did have jurisdiction
over the claims alleging failure-to-inform, because they did
not involve reviewing any issues decided by the VA in the
benefits determination. Id. The Price and Thomas cases there-
fore do not support the majority.

The D.C. Circuit in Broudy later summed it up when it said
that district courts “have jurisdiction to consider questions
arising under laws that affect the provision of benefits so long
as the Secretary has not actually decided them in the course
of a benefits proceeding.” 460 F.3d at 114. Broudy expressly
rejected the government’s argument (that had been premised
on a phrase used in Price and quoted in Thomas) that § 511
barred any district court consideration of procedural matters
relating to the conduct of benefits proceedings. Id. at 114-15.
The relevant phrase in those cases described § 511’s preclu-
sive scope as encompassing “whether the VA ‘acted properly’
in handling” the veterans claims for benefits. Id. at 115. The
Government had contended that the phrase “acted properly”
meant that the district court lacked jurisdiction to consider
any suit that challenged any aspect of the handling of claims,
including procedures. Id. at 114-15.

The D.C. Circuit in Broudy went to some pains to make it
clear that the district court lacked jurisdiction to review only
the “actual decisions” denying benefits. The court said:

Section 511(a) does not give the VA exclusive juris-
diction to construe laws affecting the provision of
veterans benefits or to consider all issues that might
somehow touch upon whether someone receives vet-
erans benefits. Rather, it simply gives the VA
authority to consider such questions when making a
decision about benefits, . . . and, more importantly
for the question of our jurisdiction, prevents district
courts from reviewing the Secretary’s decision once
made . . . .
 VETERANS FOR COMMON SENSE v. SHINSEKI 4875
Broudy, 460 F.3d at 112 (internal quotation marks and cita-
tions omitted) (emphasis in original). The D.C. Circuit has
since confirmed this narrow interpretation of § 511’s bar. See
Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 659 (D.C.
Cir. 2010) (noting that in Broudy, it deemed “that only ques-
tions ‘explicitly considered’ by the Secretary [in making a
benefits determination] would be barred by § 511, not ques-
tions he could be ‘deemed to have decided’ or, presumably,
implicitly decided” (emphasis in the original)).

The upshot of the majority’s holding with respect to the
claims of systemic delay is that veterans have no place to go
to adjudicate such claims. The majority may believe that there
is an adequate remedy for unreasonable delay by means of
individual mandamus proceedings in the Court of Veterans
Appeals or the Federal Circuit to require the VA administra-
tive courts to act more promptly. Slip op. at 4850-51 n. 18,
4857-58. Yet such an extraordinary writ is rarely granted. See
Erspamer v. Derwinski, 1 Vet. App. 3, 9-11 (1990) (declining
to issue the writ even after concluding that a delay of ten
years for benefits was unreasonable). The writ is not binding
in any case other than the case in question, see Star Editorial,
Inc. v. United States Dist. Court, 7 F.3d 856, 859 (9th Cir.
1993) (reasoning that whether to grant the writ is based on the
facts of the individual case), and thus would have no affect on
the procedures that apply to the millions of potential claims
represented by these Plaintiffs.

The majority’s position appears to rest principally upon
another aspect of the D.C. Circuit’s opinion in Vietnam Veter-
ans of America. The plaintiffs in that case framed their attack
on the appeals process as an attack on “average” delay, rather
than on delay in the handling of any particular case. Vietnam
Veterans of Am., 599 F.3d at 661-62. The court held that since
no plaintiff could show an injury caused by “average” delay,
the plaintiffs lacked standing to assert the claim. Id. at 662.
The court did not discuss whether the plaintiffs might use past
evidence of aggregate delay to demonstrate a risk of a wrong-
4876 VETERANS FOR COMMON SENSE v. SHINSEKI
ful deprivation of property in the future. See Mathews, 424
U.S. at 335.

Vietnam Veterans focused on the causal relationship of the
harm alleged in the complaint, “average delay,” to the actual
harm suffered by individuals. 599 F.3d at 661-62. The court
concluded there was no causal nexus sufficient to confer
standing. Id. The majority accepts this reasoning and goes
much further to conclude that any claim to remedy a systemic
delay must be treated as a challenge to individual benefits
determinations, hence reviewable only in the Veterans Court
of Appeals and Federal Circuit, and thus condemning veterans
to suffer intolerable delays inherent in the VA system.

The majority’s holding thus reduces itself to a “Catch 22”:
To challenge delays in the system, you must bring a systemic
claim and not just an individual claim. But if you bring a sys-
temic claim, it has to be treated as an individual claim and
you must suffer the delays in the system. Get it?