Full appeals court to hear retiree health-care suit
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.
In a setback for older military retirees, the U.S. Court of Appeals for the Federal Circuit has vacated a Feb. 8 ruling by a three-judge panel that found the government breached a promise to provide free lifetime medical care to retirees who first entered service before June 7, 1956.
The appeals court in Washington accepted the government's petition that Schism v. U. S. be heard by the full 11-judge panel.
The lawsuit was brought by retired Air Force Col. George "Bud" Day on behalf of a couple of fellow World War II and Korean War-era retirees.
If certified a class action and allowed to stand, the Feb. 8 decision could have forced the government to pay up to $10,000 apiece to more than a half-million retirees and many more spouses or survivors, triggering claims of more than $15 billion.
Day will argue that the government is as liable for breach of contract as any private party. Government lawyers will argue that the ruling panel, comprising three members of the appeals court, made serious errors in reversing a lower court's rejection of the suit.
More significantly, the government believes the case was wrongly decided. It "gravely undermines Congress' existing program for health-care benefits, is contrary to long-established legal principles and is in square conflict with the court's recent decision" in a case that went against retirees," said the Justice Department lawyers in their petition.
The full appeals court has asked for briefs by mid-August. The rehearing would occur later. The appeals court said it wants to hear both sides on whether promises of lifetime care to retirees are enforceable under the law, to what extent the promises were not kept and what relevance TRICARE for Life, as passed last year, has on the promise.
Military people need more of the following: competitive pay; affordable housing; time at home; modern facilities; flexible promotion patterns; retirement options; public support; pats on the back from more understanding leaders.
If most of that sounds familiar, it should. Every military quality-of-life study over the last decade or more has made similar recommendations.
Many have been raised anew for Defense Secretary Donald Rumsfeld, who requested the latest morale assessment and quality-of-life report soon after taking office, "to stimulate his thinking on the issues," said his spokeswoman Victoria Clarke.
Retired Navy Adm. David Jeremiah, former vice chairman of the Joint Chiefs, directed the study, in association with the RAND Corp., a defense think tank.
Jeremiah discussed the findings, generally, during a Pentagon press conference Wednesday. Defense officials declined to release the full report, with its 64 recommendations, until sometime later.
The study backs a targeted pay raise for the military next year, with higher percentage raises to mid- and senior-grade enlisted, rather than an across-the-board increase.
The military clearly has too many bases, Jeremiah said, and operating the excess reduces money to properly maintain bases the military really needs.
"We didn't [just] discover a lot of this," he said of the findings. "It was all there. People have said it many times. Now somebody has to listen.
"That's what we're doing. We're trying to find people who will listen."
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