Points of Interest: Retirees Lose Second Suit Over Promised Land

By Tom Philpott

In the Class Act case, Judge Roger Vinson said retirees "certainly have a strong equitable argument that the government should abide by its promises. Regrettably, the law does not permit me to order the United States to do so." Relief must come from Congress, he said.

"There is no question factual representations were made to members of the military . . . concerning the retirees' healthcare," said Vinson. "The issue simply is whether those representations are contractually binding." Vinson agreed with the government that they are not.

In an interim ruling a year ago, Vinson said retirees who entered service on or after 7 June 1956 have no grounds to sue because, 42 years earlier, President Dwight Eisenhower had signed the Dependents' Medical Care Act. It limited the government's responsibility for retiree healthcare "to the availability of space" in military hospitals.

In his latest ruling, Vinson examined whether pre-1956 laws or regulations bound the military to provide free care. Vinson found no such mandate, even among regulations unearthed by Class Act volunteers.

Day also argued recruiter promises alone were an implied contract, obligating the military to provide free care. Vinson disagreed, citing the Supreme Court's 1947 Merrill decision. In that case, farmers had been sold insurance backed by the Federal Crop Insurance Corporation (FCIC). When their crops were destroyed, FCIC refused to pay. The insurance policies had been written on reseeded wheat, which under FCIC regulations was uninsurable.

In Merrill , the Supreme Court said "anyone entering into an arrangement with the government takes the risk of having accurately ascertained that [the agent] who purports to act for the government stays within the bounds of his authority. . .even though the agent himself may have been unaware of the limitations upon his authority."

That same reasoning applies to military recruiters, Vinson said. Pre-1956 laws and regulations did not authorize their promises of free lifetime healthcare, though recruiters believed they did. Day conceded Vinson's ruling is "consistent" with a long line of cases. "I don't fault this judge; he's a good man." But Merrill , said Day, is old case law "overtaken by time." That's one reason Class Act plans to appeal.

"The message so far from the government is, `We can't be trusted . . Never trust our word on benefits."' If allowed to stand, Day predicted, "it's going to destroy recruiting programs. It's time Congress stepped up to the plate and put the peace dividend [savings from smaller defense budgets since the Cold War] in the right place."

The Rally : On 22 September about 300 Class Act and CORMV members traveled to Washington, D.C., from 13 states to stage a "Convention to Educate Congress." They visited congressional offices to explain declining access to care and to encourage lawmakers to keep their word. Ironically, Americans a day earlier watched videotaped grand jury testimony in which the commander-in-chief reinterpreted words like "is" and "alone."

Ten minutes into the mid-afternoon rally on the Capitol's western terrace, a torrential storm scattered the crowd. Some retirees fled to the terrace's back wall which has a dozen scalloped niches. Each could hold eight to ten retirees but would not protect them from the blowing rain.

In one niche, wearing a soggy wool suit, was Catherine Deverall, 80, of nearby Arlington, Virginia—a widow of an Air Force colonel. Mrs. Deverall said her late husband, George, had retired in 1960 after 31 years' service. Their only son, an Army Special Forces captain, was killed in Vietnam in 1968. Her husband died in 1983 "thinking I would be taken care of," she said. Suffering from cancer, it is unclear how long her current care at Walter Reed Medical Center will last.

Across the way, in another crowded niche, stood two Medal of Honor recipients, Day and retired Vice Admiral James Stockdale, the day's keynote speaker. When the rain eased, this damp pair, both former POWs in Vietnam, returned to the podium. The microphone was gone. Stockdale read his speech anyway, with Day holding an umbrella over his friend.

The crowd returned, smaller now. Few could hear Stockdale's words. No matter. They dealt with honor and sacrifice and the sanctity of promises kept. And it was hard not to compare these people and their words with the moral vacuum at the White House, a mile and an age away.


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