A seven-year court challenge by elderly military retirees, who say the government reneged on promises of free lifetime health care, came to an end Monday when the U.S. Supreme Court declined to hear their appeal.
In refusing to accept the case for review, the justices let stand a Nov. 18, 2002, decision by the U.S. Court of Appeals for the Federal Circuit in Washington that recruiter promises of free lifetime care were not backed by statute and therefore not binding contracts on the government.
Retired Air Force Col. George "Bud" Day, lawyer for the retirees, said he was "extremely disappointed" that the high court declined review "at a time when we have young people committed to war in the Middle East and when the honor of the country, in terms of doing what we say we're going to do, is at stake."
Day represents retired Lt. Col. Robert L. Reinlie and the estate of retired Lt. Col. William O. "Sam" Schism, who died in March. The men began their careers during World War II and the Korean War respectively. Had the case gone to trial, Day would have sought class action status to represent 1.5 million retirees who entered service before June 7, 1956.
Retirees who joined on or after that date were excluded because they came in under a law that, for the first time, limited on-base medical benefits for retirees to "space available" care. For older retirees, the lawsuit sought up to $10,000 apiece in reimbursement for Medicare Part B premiums paid since age 65.
Day began the legal battle in 1996 and his retiree volunteers formed a support group called Class Act. More than 23,000 elderly retirees, officers and enlisted, donated $100 or $50 apiece to finance the court challenge. Day and clients lost two rounds in federal district court in Pensacola suit before a three-judge panel of the appeals court agreed to hear oral arguments in March 2000.
While the lawsuit and Day, a Medal of Honor recipient for heroism leading fellow prisoners of war in Vietnam, attracted national attention, Medicare-eligible retirees won two extraordinary legislative victories. In 2002 Congress enacted Tricare for Life and the Tricare Senior Pharmacy program. It was the biggest expansion in government-funded health benefits in decades. This left many retirees satisfied that the promise of lifetime health care had been restored.
Day and his clients disagreed. While older beneficiaries could now use TFL and drop costly Medicare supplements, Day argued that older retirees still should not have to pay Medicare Part B premiums and should be reimbursed for past premiums. "Paying a hundred bucks a month is not free," he said.
But TFL did amount to a huge improvement in benefits, "about 90 percent" of what he had sought through the lawsuit, Day said.
Class Act members credit the lawsuit for a turnaround by Congress on retiree health benefits. But other forces also were at work. Service associations had been pounding on lawmakers about declining medical benefits for years. Retirees began a grassroots movement, organized on the internet, to protest denial of military medical benefits at age 65. Roadside billboards complained of broken health care promises.
Pressure for Congress to act peaked in 2000, an election year, and a year the government was reporting budget surpluses. Finally, the entertainment industry raised appreciation for wartime sacrifices of "the Greatest Generation" with books and movies like "Saving Private Ryan."
Day said representing this generation in court, working with Class Act volunteers, "has been one of the most rewarding things I've ever done," second perhaps only to "combat." Regardless of what city he visits, he said, some retiree or spouse or surviving spouse will "walk up to me and say, 'Hey Bud Day, thanks a million for Tricare for Life.'"
But Day said he worries about the long-term impact on veterans of the 9-to-4 appeals court decision that the Supreme Court won't review. It could handcuff court challenges involving contract or quasi-contract disputes between the government and veterans, he said.
"As soon as a guy files a claim, they're going to file a motion to dismiss and rely on this case," Day said.
Though the justices, without comment, declined to review the case, "I suspect the rationale was that the legislature should fix this," Day said. So with the court options exhausted, Day said he and Class Act will turn its resources toward Congress to try to win passage of legislation to restore free lifetime health care.
One such bill is HR 58, the "Keep Our Promise to America's Military Retirees Act," introduced by Rep. Chet Edwards, D-Texas. It would offer elderly retirees, spouses and survivors fully-paid enrollment in the Federal Employees Health Benefits Program available to federal civilian employees. It would also make FEHBP available, with premiums, to military retirees under 65 as another health coverage option.
Day said the goal is to win support from most, if not all, members of Congress from Florida, and then move on, to other big military retiree states like California, Texas and Virginia. Class Act, he said, may seek more members and donations.
If there is money left over when the group's goal is achieved, or its efforts run out of steam, the balance in Class Act accounts will be donated to a worthy military-related entity, Day said, like a museum or service relief organization.
"I anticipate we will win that legislative war, down stream," Day said. "I'm real confident Congress will support us."
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