Ruling helps oldest retirees, but appeal in works
By Tom Philpott
Military Update focuses on issues affecting pay, benefits and lifestyle of active and retired servicepeople. Its author, Tom Philpott, is a Virginia-based syndicated columnist and freelance writer. He has covered military issues for almost 25 years, including six years as editor of Navy Times. For 17 years he worked as a writer and senior editor for Army Times Publishing Co. Philpott, 49, enlisted in the U.S. Coast Guard in 1973 and served as an information officer from 1974-77.
The Bush administration has asked that all 11 judges on a federal appeals court rehear arguments and reverse a February ruling by a three-judge panel that found the government illegally breached its promise of lifetime health care to as many as 1.5 million military retirees.
If allowed to stand, the Feb. 8 decision by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., could result in claims against the government of more than $15 billion, the government warned in its April 2 rehearing petition in the case, known as Schism, Reinlie v. U.S.
"The decision gravely undermines Congress' existing program for health-care benefits, is contrary to long-established legal principles and is in square conflict with this court's recent decision (in a similar case)," the government argued.
Retired Air Force Col. George "Bud"' Day, the attorney for the plaintiffs — two Air Force retirees who won the original appeal — said he wasn't surprised that the Justice Department requested a rehearing before the full appellate court. But Day said he is optimistic that the appeals court won't reverse field for elderly retirees.
The three-judge panel had ruled unanimously that the government breached its promise to provide free lifetime medical care to military retirees who entered service before June 7, 1956. It was the date Congress passed a law that, for the first time, limited the government's obligation to care for retirees on the basis of availability of staff and space in service hospitals.
Persons who entered service before that date, and completed full careers, should have been provided lifetime health care as promised by recruiters, the three-judge panel said.
The law under which Day sued sets a $10,000 ceiling on damages, but he plans to broaden the case to a class action. That would expand potential claimants from 2 million to 1.5 million retirees, the government estimates.
Day, a Medal of Honor recipient, wrote to President Bush and Attorney General John Ashcroft after the retirees prevailed in the appeals court. He reminded the president that during the inauguration weekend, Bush told a group of Medal of Honor recipients: "A promise made is a promise kept."
Day suggested in his letter that the new administration should allow the appeals court's ruling to stand to correct an obvious injustice to a generation of retirees.
Day said he didn't blame Bush personally for the decision at Justice to try to reverse the February decision. "I attribute this to the bureaucrats.ÊI suspect Bush himself, and (Vice President Dick) Cheney, probably haven't a clue that this thing has gone up for rehearing," Day said.
The full court first must decide whether to grant a rehearing. If it does, a date for arguments will be set. If it doesn't, the Bush team can be expected to appeal to the Supreme Court.
But Day said his original arguments are sound, and "odds are remarkably high against" the government for a favorable rehearing at the appellate level.
