by Robert Coram
Doris said the base commander went rigid with shock. And it would not be until the base commander was transferred and a new commander appeared that Day would be invited back to Maxwell.
IN the summer of 1995, Day received in the mail his copy of the Retired Officer Magazine and read a story saying the U.S. government no longer was allowing military retirees over the age of sixty-five into military hospitals. These old retirees were losing their free medical benefits and were being forced into the Medicare program, which meant they would have to pay for part of their medical coverage. Medical care was very much on Day’s mind. His physical condition was such that he had been declared 100 percent disabled. Day figured the article was wrong, another media foul-up.
By now Day believed his major life’s work was over. He had been retired almost two decades. The 20 mm ricochet was just a close shave and not a sign that there remained another mission for him. Vietnam was why God had saved him from death so many times.
The travel and invitations to speak continued. His children were living proof of the good job Doris had done during Day’s almost six years’ absence. His law practice was thriving. The awards and honors were an unceasing river. The health problems caused by the Bug were as under control as they would ever be.
A few days after Day read the article, he drove out to the hospital at Eglin to pick up a supply of medicine.
“Colonel, I’m sorry. But I can’t fill that,” said the pharmacist.
“Why not?”
“This is an active-duty drug.”
“What do you mean?”
“We don’t give it to retirees.”
“What’s the basis for that?”
“It costs too much. These pills are three dollars each.”
Day nodded tightly, spun away, and went looking for the highest-ranking hospital official he could find, the deputy hospital commander, and said, “I have a real bitch.”
“What is that, Colonel?”
When he explained what happened, the deputy commander nodded and said, “That’s a dollar decision. We get allocated so much money, and our job is to take care of the active-duty force.”
“I think your job goes quite a bit further than the active-duty force. We were included in that allocation.”
“Sir, you’re going to have to talk to the hospital commander about that.”
By now Day had up a full head of steam. Added to his natural combativeness was a sense of outrage and indignation. When he went into the Marine Corps in 1942, the recruiter told him that if he served twenty years, he would have free lifetime medical benefits. He was told the same thing when he joined the Air Force. In the years since he retired, his medical benefits and his medical care had been free. The people affected by this new ruling — and he was one of them — were World War II– and Korean-era veterans, what TV anchorman Tom Brokaw would call in his book the “greatest generation.” More than a million of these men were still alive, and they had been receiving free medical benefits for years. Those benefits were as much a part of military culture as saluting the flag or saying “sir” to superiors.
Day went down the hall, eyes hard and right arm pumping. He found the flight surgeon, a man who had treated him in the past, told him what happened, and said, “This is a lot of bullshit.”
The major agreed. “I can’t believe the government is sniping away at you old guys.”
“Where did this come from?”
“The White House. President Clinton did this.”
Day’s face hardened.
17
Once More unto the Breach
DAY was profoundly disturbed as he drove home from Eglin.
If this business of no drugs or hospital privileges for the over-sixty-five retirees was true throughout the military — and it had to be; Eglin could not be the only Air Force base in America doing this — the ramifications were almost impossible to comprehend. He did not know then how many over-sixty-five retirees, spouses, and widows there were, but he guessed — with considerable accuracy, as it later turned out — at least a million, maybe two.
Two crucial distinctions here: First is the difference between “veteran” and “retiree.” If a person serves a single tour in the military, he is a veteran. But he must spend at least twenty years in the military to be a retiree. All retirees are veterans, but not every veteran is a retiree. The loss of free medical care applied only to retirees from the World War II and Korean era. Second, military hospitals and Veterans Administration (VA) hospitals are separate entities. A military hospital is on a military base. VA hospitals are scattered around the country and initially could be used by any veteran — not just retirees — who had a service-connected illness. (Today a veteran can go to a VA hospital whether or not his illness is service connected.) The distinction between “veteran” and “retiree” and between “military hospital” and “VA hospital” often was not understood, even by members of Congress or by federal judges.
Maybe two million people’s promised free lifetime medical benefits had been taken away by Bill Clinton.
This simply could not be true. Free lifetime medical benefits were one of the single biggest reasons people made a career of the military, part of the trade-off for a career that paid far less than its civilian counterparts. Day’s government, the government whose uniform he wore for thirty years, the government whose policies he upheld for five years, seven months, and thirteen days in Hanoi, the government he spent most of his life defending, would not cut loose the old guys from free medical benefits, not when they were at a time in their lives when they most needed those benefits, not when so many of them were living only on retirement pay and Social Security and would be financially devastated by the loss of those benefits.
When Day arrived at home, he dug through his old copies of the Retired Officer Magazine and reread the article about free medical benefits being dropped for retirees over sixty-five. He threw the magazine aside. “I was so damn mad I could hardly see,” he remembers. Ever since he had retired almost twenty years ago, the government had honored the promise it made to him when he first enlisted in the Marine Corps. Now they had breached the contract; they had broken the promise.
And military recruiters were still promising young enlistees, “You give us twenty years and we will give you free lifetime medical care.”
Congressmen, senators, federal judges, and federal employees received largely free care through a program called the Federal Employees Health Benefits Program (FEHBP). There were frequent newspaper stories about government officials entering Walter Reed Army Medical Center near Washington. Their treatment was free.
Day, as he does with everything of importance, wanted to run all this past Doris for her reaction. When he did, she looked at him in disbelief.
The more Day thought about the ramifications of what had happened, the more disturbed he became.
For Clinton to single out military retirees and have them bear the burden of his cost-cutting was unspeakable. He probably figured these men were too old and too few and too incompetent to fight back. Thousands of Korean- and World War II–era retirees died every month. In another ten years there would be only a handful left.
Day got little sleep that night. He had to do something. He could not let this stand.
Early the next morning the phone rang. It was the hospital pharmacist from Eglin. “Colonel, you can come out and get your prescription,” he said. “It’s all squared away. You are good to go.”
The hospital commander called a few minutes later and apologized profusely for the “mix-up” of the previous day. There can be no doubt that when the hospital commander was told what had happened, he put the incident in context: A famous POW, America’s most decorated living officer, an MOH recipient, turned away from the Eglin pharmacy over a prescription. My God, if the papers got wind of this. Plus, the officer in question was a lawyer who specialized in litigating against the military and had an almost-perfect batting average.
But Day was
having none of it. “You guys have to do better,” he said. “You are being funded to take care of us. This is a breach of contract. It is pretty chintzy, especially on medicine, to screw us around. This is the cheapest issue. If you have to operate on us and put us in hospital rooms, that’s high dollar. But for pissant prescriptions of ninety dollars? That’s pretty poor judgment.”
“There’s not just one of you, Colonel. That ninety gets multiplied. Some prescriptions run hundreds of dollars a month.”
“I don’t care. They told me if I did twenty years that I would get free medical care, and that’s what I expect.”
“Sir, we’re doing our best.”
That night at dinner he casually said to Doris, “I’m thinking of suing the government over the medical-benefits issue.”
She stared at him. She knew how difficult it was to sue the U.S. government. “Oh, Bud,” she said impatiently.
ABOUT that time, Ted Raymond, a columnist for the local newspaper, wrote a piece about how military retirees had lost their free medical care. Day called him and they talked for more than an hour. Raymond himself was a retiree who had done extensive research before writing his column. He told Day that in 1956 a law had been passed stipulating that free medical care for retirees would be on a “space available” basis. In the beginning, this had no impact on retirees because there was always space available. But then, depending on where they lived and what military facilities were near them, some retirees were turned away. As military spending was reduced and bases began closing, more and more retirees were affected. All of this led to almost every veterans’ organization going into the insurance business — selling supplemental health insurance policies.
Raymond remembers that the last thing Day said before he hung up was “I’m going to have to do something about this.” Day did not know it, but groups of retirees, upset by the change, were forming in Georgia, North Carolina, South Carolina, Texas, and several other places around the Sun Belt. They did not then know about each other’s existence. They were getting media coverage but only in their local newspapers. What they needed was a leader to unite them.
Perhaps only a litigator truly understands just how difficult it is to pursue a cause of action against the U.S. government. The principle of sovereign immunity — the ironclad idea that the government, simply because it is the government, has immunity against lawsuits — is a daunting obstacle. A few exceptions to the principle exist, but lawyers find it difficult in the extreme to meet those exceptions.
Day began spending hours in his law library, looking for a statute he could use to override sovereign immunity, something that could serve as the vehicle to penetrate the barricades that protect the government. The first of those barricades, especially to lawyers who practice beyond the Beltway, is that litigation against the government must be filed in federal court in Washington, DC. This means that all pleadings, hearings, and arguments must be conducted in Washington — an onerous burden to a lawyer in Florida.
In the next few months, Day spent more than a hundred hours researching the law and talking with other lawyers about whether or not he had a cause of action and, if so, how best to press forward. In the end, only one statute applied, a single obscure law under whose umbrella he could stand: the “Little Tucker Act,” which, reduced to the relevant basics, says that sovereign immunity can be waived for claims founded upon an express or implied contract with the government and that an action can be brought in a federal district court if the claim does not exceed $10,000. To Day, this latter point was one of the most appealing aspects of Little Tucker. He could file in Pensacola, less than an hour’s drive from his office.
Now that he knew how to proceed, he wanted the widest possible base of support. This was going to be an expensive proposition, and he needed help. When the government lawyers looked at his pleadings and realized that this action out of a two-lawyer firm affected maybe two million people, they were going to unleash every resource at their command.
About 397,000 retired officers belonged to what was then called The Retired Officers Association (TROA). (The name has since been changed to Military Officers Association of America [MOAA].) Day expected full support from the group; after all, the core of the association’s membership was affected. But when he called TROA, he was astonished. Retired three-star Mike Nelson, the top man at TROA, said that the case could not be won and that his in-house counsel advised him not to get involved.
Day then called the TROA counsel, a former Coast Guard lawyer, who said that Day was relying on the wrong case law, that he could not sue the government and recover damages.
Day did not believe this. “Well, down in Florida, the way we know who won a lawsuit is to look at who walks away with the money.”
“You need to read the case law a bit closer,” said the TROA lawyer.
Day hung up, thinking he was talking “to a full-of-crap corporate lawyer who did not want to rock the boat.”
(Day later realized the reason for TROA’s reluctance. The organization purported to be an advocacy group for retired officers. But its biggest source of income was from selling insurance to its members — particularly Medicare supplements, for which the lowest premium was around $300 per year. Assuming only 200,000 members — slightly more than half of TROA’s membership — bought the Medicare supplements, a successful lawsuit on Day’s part could cost TROA about $60 million annually in lost premiums.)
Day then called the American Legion, whose leaders told Day he had no claim and no standing and should not sue the government. It was the same with the Veterans of Foreign Wars, the Air Force Association, and the Fleet Reserve Association. Each either failed to support the lawsuit or would give it only lip service. All these veterans’ groups said the same thing: “A lawsuit has no chance. The best chance for change is for you to turn this over to us and let us influence legislation.”
The obstacles against Day were greater than ever.
For weeks he was torn between the almost heretical idea of suing the government to which he had devoted most of his life, and the equally heretical idea of allowing a great wrong against old warriors to go unanswered. As he debated, he continued to research. During his reading he came across a decision out of the Ninth Circuit of the U.S. Court of Appeals that seized his attention. The Ninth Circuit is in California, and its decisions — at least to those who take a conservative approach to the law — sometimes are bizarre. But Winstar v. the United States involved several government-backed S and Ls that went broke, and it offered the crucial comment that when the government is involved in a contract dispute, it will be treated like any other party: sovereign immunity does not apply. Even better, the Winstar case resulted in a multi-billion-dollar judgment against the government. The case stood up through the appellate process.
Still, Day was undecided. If a lawyer files suit in federal court and the court decides that he has no cause of action, that his lawsuit is capricious or a misuse of the judicial process, not only will the case be thrown out but the lawyer can be forced to pay the cost of the proceedings.
Finally, there was another issue that nagged at Day. He was seventy years old, and it could take years for this case to find its way through the courts. The effects of the injuries caused by the Bug grew worse each month. He tired quickly. His eyesight was beginning to falter; often he wore socks that clashed with his suits. His hearing was deteriorating. Sometimes when he was trying to remember a name or a fact or a legal citation, it took a minute or so to retrieve the information. A courtroom is no place for a slow-thinking advocate. And while he was a relaxed, skilled, and even humorous informal speaker, appearing in federal court is a very formal matter with rigid rules of deportment and procedure. He privately wondered if he was physically and mentally up to such a daunting campaign. Could he well serve two million veterans on a matter of such crucial importance, on a matter that would lock him in bitter and protracted combat against the U.S. government? To take the case would be a life-changing decision.
It would consume almost every waking moment for years to come. But if he didn’t step up, who would?
Through the fall and winter of 1995 and through the spring and early summer of 1996, Day went back and forth, trying to decide what to do. The one thought that kept coming back was the simple idea that the government had broken its vow to the over-sixty-five warriors. That was wrong. A promise was a promise. The fundamental principle went back to George Washington, who, in asking the Continental Congress to provide care for veterans, said that the willingness of young people to serve in war was directly proportional to their perception of how veterans of earlier wars were treated.
One Friday night, Day was at home sipping a glass of white Z. His mind was on the retirees, but slowly, almost involuntarily, he became involved in the movie playing on the television set. It was called The Verdict and starred James Mason and Paul Newman. Newman played the role of an aging down-at-the-heels lawyer who was opposed in court by a big and prestigious law firm that had virtually unlimited resources. Everyone agreed Newman had a no-win case and should accept a generous offer to settle out of court. Instead he went to court and, against seemingly impossible odds, won.
It was a powerful do-the-right-thing sort of movie. And when it was over, Bud Day had an epiphany.
God had not spared his life a half dozen times to make him strong enough to withstand the travail of North Vietnamese prisons. No, Hanoi was only to toughen him up for the big job, for the real reason he was put on earth. That 20 mm ricochet was a notice that he still had work to do. And the nineteen years since he had retired was the time he needed to gain the skills for this last big job.