by Robert Coram
But Bud was not alone. Bob Geasland drove to Washington and, in a Navy medical library, found Navy Manuals of the Medical Department (MEDMAN) from 1922 and 1945 showing that free medical care for Navy and Marine Corps retirees had the force of law. Geasland also found the crucial “Forrestal Memo.”
James Forrestal was secretary of the Navy and then, in 1947, became America’s first secretary of defense. As secretary of the Navy, he signed a document that clearly set forth the military policy of using free medical care as a recruiting tool, of telling enlisted men and officers alike, You give us twenty years and we will give you and your spouse free lifetime medical care, plus a retirement pay that equals 50 percent of your salary when on active duty.
Now Geasland had documented Army, Navy, and Marine Corps practices. At Maxwell Field, he found the Air Force had piggybacked on Army regulations when it became a separate branch of the military. Indeed, his research showed that as far back as 1811, there had been an organized government effort to provide health care for improvident veterans. Sailors and Marines were assessed ten cents per month to build regional hospitals in Charleston, Boston, Philadelphia, and Pensacola. The heart of the hospital-fund legislation directed the secretary of the Navy to write the regulations concerning which military members would be admitted. Congress was completely out of the loop on hospital usage; all it did was appropriate additional construction funds. In fact, until 1956 and the “space available” law, Congress had never dictated the conditions under which retirees would be admitted to military hospitals.
On September 1, 1998, Judge Vinson entered a decision on civil document Case No. 3:96 CV 349/RV. The order was brief and said that while there was no question that certain representations were made to members of the military regarding health care, the issue was whether those representations were contractually binding. He did not think so and tossed Day’s case out of court. To put this in perspective, the civilian analogy would be if the government decided to stop paying Social Security and a federal court upheld the decision.
Day’s action was predictable.
He appealed.
18
The Fat Lady Never Sings
ON September 22, 1998, Day met in Washington with about 150 retirees for a rally on the West Steps of the Capitol. This “Convention to Educate Congress” about health care was one of dozens of trips Day would make to Washington to talk with members of the House and Senate about the broken promise to America’s military retirees.
Most members of Congress treated him with respect and gave him time to tell his story. But a few young staffers treated him with open disdain. He never took it personally, never became angry. And he forgot it before he was ten steps down the hall.
For these trips, he was, as always, paid only expenses. He stayed in cheap hotels across the Potomac in Virginia. He traveled by metro.
It was not unusual for him to be recognized by passengers, almost always military or ex-military people who had heard him speak at one place or another over the years. The conversation was always the same. The passenger would approach deferentially and say, “Excuse me, sir, but are you Colonel Day?”
That fetching boyish smile would break out on Day’s face. He would clap the other person on the shoulder and say, “Sure am, pal. How you doing?”
Then the passenger would reach out to shake hands and say, “Great honor, sir. Great honor.”
During the years the lawsuit was in the courts, Day would make many trips to Washington. But this trip was special. James Stockdale was there.
By now, Stockdale was beginning the long, slow decline into Alzheimer’s disease that would claim his life in less than a decade. People stared as Stockdale and Day stood on the steps of the Capitol to address the retirees. A violent and fast-moving rainstorm suddenly moved in and sent spectators and the retirees scattering for the shelter of nearby buildings. Stockdale and Day remained. Of course they would.
Day opened an umbrella and held it over Stockdale so his prepared statement would not be soaked.
Stockdale began, “With heavy heart I have come to the nation’s capital to ask the Congress of the United States to honor America’s commitment to its military veterans.” As he slowly spoke, Day stood a step above him, protecting him with the umbrella, staring straight ahead, jaw firm and jutting as the rain lashed him.
The sight of the two men, both MOH recipients, both heroes of Hanoi, both military legends, was enough to make the other retirees emerge from the protection of nearby buildings and gather to hear their comments.
Tom Philpott, who writes a syndicated column called Military Update, was there. He wrote that Stockdale spoke of honor and sacrifice and the sanctity of promises kept. Philpott finished his column with “And it was hard not to compare these men and their words with the moral vacuum at the White House, a mile and an age away.”
Other than Philpott, who wrote about Bud Day’s case extensively, there was almost no media coverage. In late September 1998, the big story was not about America’s broken promise to some two million military retirees; the big story was about Bill Clinton’s broken promise to his wife.
IN December 1998, Bud Day filed documents indicating he would appeal the decision of the district court judge in Pensacola to the U.S. Court of Appeals for the Federal Circuit in Washington, a court that has nationwide jurisdiction in specialized cases.
It is in the appellate courts — particularly in the U.S. Court of Appeals for the Federal Circuit, which is considered only a half step below the Supreme Court — that legal writing reaches its zenith. Lawyers appearing in these courts know their briefs can become part of the legal canon. They strive for elegant and soaring prose that approaches literature. They favor pinstripe suits. They eschew emotion and manifest the pure essence of the legal thought process.
Not Bud Day. There was nothing delicate or rarefied about his brief, nothing of the épée designed to delicately puncture. He came in swinging a two-handed battle sword that mowed down everything before it. His appeal was a gutbucket document of indignation and outrage, a scathing denunciation of both the government lawyer and the federal judge in Pensacola. He said Hirschfield was either incompetent or a liar in that she made false representations about existing statutes and knew or should have known that she was not being truthful. He told how the plaintiffs had begun discovery but were “cut off early by the trial judge.” He said Vinson “improperly limited plaintiffs’ discovery and thus improperly shifted the burden to the plaintiff to disprove the defendant’s defense with evidence in the defendant’s control.” In a sentence dripping with sarcasm, he wrote, “District court found that the secretaries of the Army, Navy, and defense, its officers and agents in DOD, and military recruiters did not have authority to bind the government to promises of free lifetime medical care.” He used exclamation points as a hammer, saying that the judge “erred in applying both the facts and the law” and that the precedent used by the judge was “too old, too narrow, and too mean to apply in this case!!” He added that “it cannot be the intention of Congress or the Executive Department (defendant) to provide the aged Private Ryans a discriminatory hemlock drink from the cup of life after reaching age sixty-five. If in fact that is the intention, then this government of William Jefferson Clinton is not worth fighting for.”
DAY had a lot riding on his court appearance before the three-judge panel. By now, more than ten thousand retirees, each individually qualified as affected by the Clinton cost-cutting measure and therefore eligible to participate in what Day hoped would become a class action suit, had signed up for CAG. (Eventually there would be more than thirty thousand.) Day spent months preparing the appellate brief. Almost two million people were depending on him, and the three-judge panel, if it upheld the decision of the district court, could dash their hopes. Such an outcome would mean Bud Day had to abort his final mission. And that was unacceptable.
WHEN John McCain ran for president in 2000, Orson Swindle worked in the campaign’s national headqu
arters. One of his main jobs was coordinating the support of veterans around the country. Florida was a crucial state because about 1.7 million veterans live there — a powerful political force. Bud Day worked tirelessly for McCain.
George Bush showed that he had his father’s political skills when he characterized McCain as a man who had undergone so much torture in Hanoi that he could not stand up under the pressure of the presidency. Day was furious. Yet when McCain withdrew from the race, Day switched his support to Bush, a man who spoke often of the need to honor the nation’s veterans and to protect retiree benefits. And besides, Albert Gore was Bill Clinton’s Mini Me.
ON March 6, 2000, the night before he was to present his case to the three-judge federal panel, Day went to the hotel restaurant for a bowl of soup. He was exhausted and had a bad cold. At the restaurant he was seized with a terrible coughing spell. Later, as he went over his presentation, his throat was so sore he could not finish. He lost his voice. In despair, he swallowed his sleeping pills and a host of other medicines and went to bed.
Day had just turned seventy-five, an age when few lawyers continue to practice. Four long years had passed since this matter began. He had gone through another surgery on his shoulder. He was becoming more forgetful, less able to summon facts immediately. And even though he had given hundreds, perhaps thousands, of speeches in the last quarter of a century, he still stiffened up somewhat in the formal setting of a courtroom. His mouth became dry and his hands trembled. His hearing was at the point where he often used a blank stare and a raised eyebrow to have people repeat whatever they said. Soon he would get a hearing aid.
The next morning Day was elated. His voice had returned. He dressed in a starched white shirt, solemn gray suit, and sober tie. His shoes were polished until they gleamed.
Doris checked his socks. Bud had a pair of Christmas socks, bright red with green Christmas trees on them, that he liked to wear no matter the season. But today Doris made sure he wore black socks.
Doris sent Bud on his way. She was running late and would be along soon.
The U.S. Court of Appeals for the Federal Circuit is located on Madison Place, a small street between Pennsylvania Avenue and H Street that is closed to vehicular traffic. Day walked in and saw that his case was number two on the docket.
Rarely does an advocate have a day in the courtroom such as Bud Day had before the three-judge panel. It was, to use his phrase, “a slam dunk.” Every question the court asked him was sympathetic and understanding, and he responded quickly with relevant case law. His memory was sharp and his tongue was persuasive. The secretary of the Navy had offered free lifetime medical care to sailors and Marines in the 1918 issue of the MEDMAN. Those promises, funded by Congress, were carried out over more than seventy-seven years.
The government lawyer was E. Roy Hawkens. Sitting beside him was a JAG officer. Day could not believe that a man in uniform would oppose his case. The officer’s mere presence made it appear that the military was fighting the retirees.
The foundation of the government argument was that the promises of free medical care might have been made, but there was no statute authorizing the promise and therefore the promises were without authority and were not enforceable. It was the familiar “rogue agent defense” — the agents had no authority to make the promises, and therefore the promises were not legal.
Judge Pauline Newman said, “You’re not telling us that these promises were not made; you’re just saying they don’t have to be kept?”
“Regretfully, that is the case,” Hawkens said.
The judge pointed out that the government’s promise was never conditional; the promise was made for life.
“The current Congress is not bound by the generosity of benevolence of a previous Congress,” said Hawkens.
Judge H. Robert Mayer asked if there were not someone in the chain of command who had authority to bind the government to the promise that had been made.
Hawkens said the promise was a “well-meaning misunderstanding resulting in an unauthorized representation” that could not be enforced to the extent of drawing on the treasury.
When Day left the courtroom late that morning, he knew he had won. There was only one way the court could rule.
IN October 2000, the “Keep the Promise Bill” introduced by Representative Ronnie Shows passed through Congress. In its final form, the bill became known as “TRICARE for Life.” It was a staggering win for Bud Day in that the law gave the retirees far more than he had asked.
Not only did the law allow military retirees to use military — and civilian — hospitals for their care and medicine but it provided a low-cost mail-in pharmacy program that meant retirees did not have to drive fifty or a hundred miles to buy drugs at a military hospital. And Congress expanded the coverage to include retirees under sixty-five. The law did not cover ears, eyes, and dental. (The “ears” part is important because many retired pilots have significant hearing loss from being around aircraft engines for so many years.) And retirees still had to pay for Part B of Medicare, the supplement that covers doctor fees. But TRICARE for Life meant that Bud Day had returned to the retirees about 95 percent of what the Clinton administration had taken away. And for the remainder of his life, no matter where he went, elderly retirees would come to him with tears in their eyes and thank him.
BEFORE the federal panel ruled, there was the end of the bitterly contested presidential campaign. Day was proud of how the veterans and retirees in the First District turned out. Indeed, voters across the panhandle voted so heavily for Bush that CBS — and the other networks — did a lot of backpedaling and adjusting and explaining and correcting before reporting that Bush had carried the state.
Later, on January 19, 2001, at a preinaugural “Salute to America’s Veterans,” Bush would say, “In order to make sure that morale is high with those who wear the uniform today, we must keep our commitment to those who wore the uniform in the past . . . We will make sure promises made to our veterans will be promises kept.”
Even though Day won a major battle in Congress, he had not won the war. He wanted to absolve retirees of having to pay Part B of Medicare. And he wanted them reimbursed — up to $10,000 each — for their medical expenses since 1995.
On February 8, 2001, Day received news that the three-judge federal panel had reversed the district court. The judges sent the case back to Pensacola and ordered the district judge to decide how much to pay the retirees to make them whole. In a scathing decision, the three-judge panel said the district court judge erred in applying both the facts and the law, that Vinson had “misread case law” probably because he was taking “one-liners out of headnotes without a full review of the facts, or misapprehension of the case.”
Because of what would happen later, it must be noted that the then chief judge on the three-judge panel was H. Robert Mayer, a graduate of West Point and a highly decorated former Army Ranger who wore a Combat Infantryman Badge. He had been appointed by Ronald Reagan. Judge S. Jay Plager, appointed by George H. W. Bush, had been a Navy commander who served in the Korean War. Both of these men had been among the many promised free medical care if they spent twenty years in uniform. Judge Pauline Newman, appointed by Reagan, also ruled in favor of the retirees.
The idea that a federal judge might order the government to pay up to $10,000 to the retirees filled government lawyers with panic. The government asked for an en banc hearing — that is, that the case be heard by the full court of twelve judges. And they planned how they would bring out the legal equivalent of the nuclear option.
The government estimated that at least 1.5 million retirees were older than sixty-five and that if each received $10,000, the feds would have to fork over $15 billion. To Day and the retirees, this was a moral issue, an issue about a broken promise. Now the government was making it a dollar issue. And $15 billion was an amount that would make any federal judge jump back from his desk.
The court granted the request for an en banc hearing and
issued instructions that new briefs should include an analysis of only three issues: 1) Were promises of free lifetime medical care enforceable? 2) In light of retirees receiving free medical care under authorization bills passed by Congress and thus arguably with its approval, to what extent has Congress ratified the promise by funding the military health-care system and permitting the military to make good on its promises to retirees? 3) What relevance, if any, did the National Defense Authorization Bill of that year have? (This legislation contains funding for the military.)
Bud Day would be ready. Or so he thought.
IN November 2001 came an event at the Air Force Academy that, while seemingly tangential to Bud Day’s story, would have a profound effect on his life.
Brigadier General Robbie Risner, the high-profile POW, was a devoutly religious man. After he retired, Ross Perot had been responsible for his being named director of the Texas antidrug program. Risner and Perot became close friends, so close that Perot asked Risner to speak at his church in Dallas, the Highland Park Presbyterian Church. There Risner told the story of how he had organized the first church service in the Hanoi Hilton, how this resulted in the Church Riot, and how, as he was led away to torture, he heard Bud Day leading the POWs in singing the National Anthem. He recalled how at that moment, “I felt nine feet tall.”
Perot had been so moved by the story that he commissioned a sculptor to cast a nine-foot-tall statue of Risner. Perot took verse eight of the sixth chapter of Isaiah, which reads, “Also I heard the voice of the Lord, saying, Whom shall I send, and who will go for us? Then said I, Here am I; send me,” and condensed it to “Who will go . . . send me” and had it engraved on the base of the statue. (Perot is one of few men with enough confidence to rewrite the Old Testament.)