Even if the issue were "reviewable," said Duffy, retirees have no "property rights" to health benefits promised by recruiters and service leaders, because such promises were never backed by law. "The judge essentially bought the entire government argument and left us with a tough row to hoe," said Kator, lead attorney for the Coalition of Retired Military Veterans (CORMV), a nonprofit group formed specifically to mount a legal challenge on behalf of military retirees.
Kator has asked Duffy to reconsider, after reviewing recruiting manuals and other documents that Kator said would prove promises of free health care for life were made by recruiters, with the encouragement of service leaders.
"It may be we won't convince Judge Duffy we are right, but if we're going to appeal—and we are—we should at least have a complete record."
Nothing in Duffy's December ruling should inspire confidence that he will reconsider. He cited an appeals court case that the Constitution "assigns the conduct of military affairs" to Congress and the executive branch, not to the judiciary. This deference to the military was affirmed recently, Duffy said, in failed legal challenges to the Clinton administration's "Don't Ask, Don't Tell" policy, which attempts to control behavior of homosexuals in service.
Even if the court had jurisdiction, Duffy accepted a host of other government arguments for dismissing the CORMV lawsuit, and even added a few of his own. He said:
- Retirees have no "property right" to military health care.
- The health benefit is not "deferred compensation" for past service, as Kator had argued. If it were, Duffy said, the IRS would be taxing it.
- Written law—not recruiter promises or ambiguous regulations—creates legal curtailment of benefits.
- Congress can pass laws that change such entitlement.
- Retirees are "uninjured" by the loss or free military health care because they still can use military-sponsored health-care programs such as CHAMPUS and TRICARE Prime—or, if 65 and older, Medicare.
- The 1956 law giving retirees access to military care on a "space available" basis is meant to be "conditional" and therefore provides a sound legal basis for limiting their access to care.
The most disturbing aspect of Duffy's ruling, said Kator, was his refusal to find that retirees have a property right in promised health care. What the government has done with retiree health care, Kator said, is comparable to the Air Force grabbing farm land to extend a runway. The Air Force can do it but the farmer must be properly compensated, said Kator. And so must the retiree.
"Never, ever has a court said the military was free to take property because, by God, we can't interfere with the military," he said.
The only comfort Kator could squeeze from Duffy's ruling was the fullness of his stand for the government and against retirees. "It might be helpful to us [on appeal] that Judge Duffy adopted the entire government argument because some of it is demonstrably flawed....The idea he had to defer to the military because this might cost a lot of money—I don't believe that's a sound constitutional argument."
A second lawsuit, brought by retired Air Force Colonel George "Bud" Day on behalf of retirees 65 and older, was still alive before a federal judge in Pensacola, Florida. Day said important parts of his argument are untouched by the reasoning Duffy used in the CORMV case. Still, Day couldn't hide his disappointment:
"It's going to be a blow to everybody. A lot of misinformation will get out there. A lot of people who were ready to join them, or us, are going to say, `Well, you just can't fight the government."'
Day said he was surprised the CORMV lawsuit didn't survive the first round on at least a point or two. "I expected them to get a partial order to proceed, not a full dismissal," he said.
Day requested a quick oral argument before his judge in why the CORMV outcome shouldn't harm the case brought by older retirees.
If Duffy refuses to reconsider his decisions Kator said, CORMV's intention is "to appeal all the way to the Supreme Court."
"This is the first round of a three-round fight and the only one that matters is the last," he said. "Sure, we would have rather won this one. But it's far from over."