Kia Franklin

A Recap of Sorts: Civil Justice Developments for the Military

Last Thursday, a California Federal Court of Appeals ruled that the VA must pay retroactive benefits to Vietnam veterans who were exposed to Agent Orange and developed cancer as a result. From that court opinion (written by Judge Stephen Reinhardt):

"We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the consent decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled." Read the AP article

One can just hope that the refreshing news of this court decision will only get better, and that our court system will continue to hold the government accountable as the question turns to the government’s treatment of Iraq vets.

Yesterday an AP article (filed at 3:27p.m. Monday) announced a new class-action lawsuit filed against the Department of Veterans Affairs for failing to provide adequate mental health and other health care services to Injured Iraq war veterans. The complaint alleges that VA Secretary Jim Nicholson deliberately worked with the Pentagon to misclassify veterans as having pre-existing disorders, so as to then deny their claims for benefits relating to Post Traumatic Stress Disorder. It also alleges other claims were wrongly and flatly denied.

From the complaint:

"Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse and alcoholism, and crushing burdens on the health care delivery system." Read the article.

Too bad the government can’t force the armed forces to arbitrate their claims against them like private companies can. That would teach those pesky veterans not to hold the government to its promises, and not to dare seek acknowledgment for their service to this country.

Actually, that reminds me of this Times Magazine article (printed June 14, 2007) on an employment discrimination case between an Iraq War veteran and his former employer, Circuit City, that was sent to mandatory binding arbitration per the mandatory binding arbitration clause in the employment contract.

When I first read the article I was completely confused about how this could actually be true. I mean, it essentially adds up to the privatization of employment discrimination law. But going back and looking through the case-law (449 F.3d 672 (5th Cir. 2006); 338 F. Supp. 2d 717 (N.D. Tex. 2004)) and other background material (these two, for example) showed me that unfortunately, it is:

Marine veteran Lt. Col. Michael Garrett worked as a manager at Circuit City for 9 years, and according to (this article he experienced “difficulties” surrounding his Marine Corps Reserve activities throughout employment. But “when it became clear that U.S. military action against Iraq might be imminent, he began to receive unjustified criticism and discipline from his Circuit City supervisors, culminating in his March 2003 firing—two days before the Iraq invasion.”

His would have been a story of justice served, thanks to the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, which makes it illegal to discriminate against an employee based on his or her military status. However, Lt. Col. Garrett’s employment agreement contained an arbitration clause that sent him to arbitration. He took his case through the legal system, pushing for the opportunity to (as USERRA promises) take his claim to federal court with a jury. But a district court ruling held that USERRA did not override the contract agreement. The Time article explains why this is a bad thing:

Companies like Circuit City say binding arbitration is faster and cheaper than going to court, though studies have cast doubt on both claims. What really bugs employees are the rights they lose in arbitration—and the apparent bias of arbitrators. There are strict limits on gathering evidence for arbitration hearings, and it is virtually impossible to appeal them. Arbitrators don’t necessarily have to follow the law, and studies suggest they favor companies that regularly hire them…It’s hard to believe… that Congress thought a second-class justice system like arbitration was just as good as the federal courts for veterans.

As we talk about the importance of a strong civil justice system for protecting the American public, there are a few groups who seem to be especially deserving of this protection. One of those groups is the armed forces, who sacrifice their livelihood and their lives for the rest of the country. Even though I'm opposed to our presence in Iraq, denying the rights of soldiers will do nothing to remedy that problem. And if we see little being done to help them, what can every day civilians expect to get?

Because I'm an optimist, I'll end by noting that, luckily, there are glimmers of hope, like the pay-day legislation limiting predatory lending to members of the military, the arbitration fairness act that's in congress right now, and the various court cases that uphold consumers' right to see their wrongdoer in court. But there's still much left to be done.

Kia Franklin: Author Bio | Other Posts
Posted at 5:14 PM, Jul 24, 2007 in
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