Another variant with injunctions is there is no jury involved in the determination. Equitable remedies can only be determined by a judge. In this case, the judge would determine what and how to uphold the laws already in place (that are not being followed) by enacting new laws and procedures. For example, certain concerns in question are already "guaranteed" by the Department of Veteran's Affairs: they are simply either not done, not done in a timely manner or not done without errors or omissions.
The equitable remedies sought in this lawsuit would compel the Department of Veteran's Affairs to follow the laws already in place for due process of disability claim filings as well as to provide a new psychiatric evaluation model for PTSD according to the DSM-IV-TR-6. Equitable remedy would also eliminate the current exclusionary diagnosis determination of "personality disorder" discharges (which members of the armed forces have been offered for their symptoms of service-related PTSD).[5] A "personality disorder" discharge excludes a veteran from a determination of PTSD as the diagnosis of "personality disorder" is considered a pre-existing condition under the Department of Veteran's Affairs and is not covered. Many veterans signed off on "personality disorder" for their post-traumatic symptoms, when indeed this was not the case, and unbeknownst to them, they were automatically disqualified for veteran's health care benefits.[6] "More than 22,500 soldiers across the armed forces have been suspiciously diagnosed and discharged with "personality disorder" in the last six years, condemning them to a lifetime of disability without compensation or access to VA medical care."[7]
The injunction also refers to changing the current ban on lawyers (known as "Fee Prohibition"), which prevents the assistance of a lawyer when filing or appearing before an administrative law judge for a disability claim. Discovery of evidence is therefore prevented as well as a fair and full account of the file/claim in question. What occurs, according to the civil suit filed by Morrison & Foerster, LLC, is that the veteran is left to fend for him or herself to defend/argue/convince the judge of the facts present or not present in their claim file.[8] As many of us are aware, lawyers are allowed for Federal Disability Claims for Social Security Disability and it is most often the involvement of a lawyer that results in a proper disability claim judgment.
This then leads to why the suit references the Rehabilitation Act of 1973 versus the American with Disabilities Act of 1990. The Rehabilitation Act of 1973 specifically refers to and prohibits disability discrimination (including access to health, welfare and social services) by federal agencies, federal contractors and other recipients of federal financial assistance.[9] The Rehabilitation Act also allows private individuals to file under this Act in the courts against federal agencies, employers or recipients of federal assistance.[10]
The Rehabilitation Act preceded the Americans with Disabilities Act (ADA) by 17 years. Prior to the ADA, Section 504 of The Rehabilitation Act was the front line of defense against discrimination for disability by federal agencies and their affiliates. The ADA does not provide protection rights against discriminatory action by the federal government; hence, the Rehabilitation Act is the referenced cause of action being utilized here for disability discrimination by the Department of Veteran's Affairs and their related agencies.
The ramifications of this lawsuit are imperative to the mental health care provided to veterans. The full class action civil suit claim is located on the web and is full of extensive and thorough statistics and information. (http://www.mofo.com/docs/pdf/PTSD070723.pdf) There will be more to come on this issue-explaining out the bare bones of this class action suit is only the tip of the iceberg.
[1] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California
[2] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California
[5] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.
[6] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.
[7] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.
[8] Original copy of Civil Suit filed by attorneys of Morrison & Foerster, July 23, 2007 with Richard W. Wieking, Clerk, US District Court, Northern District of California.
[9] http://law.jrank.org/pages/6146/Disability-Discrimination-Rehabilitation-Act-1973.html
