-Caveat Lector-
---------- Forwarded message ----------
Date: Fri, 09 Mar 2001 15:32:51 -0700
From: American Patriot Friends Network <[EMAIL PROTECTED]>
To: APFN Yahoogroups <[EMAIL PROTECTED]>
Cc: [EMAIL PROTECTED]
Subject: "MILITARY" COMPLAINT Class Action Suit
-------- Original Message --------
Subject: COMPLAINT Class Action Suit
Date: Fri, 9 Mar 2001 15:00:20 -0700
From: "Philip E. Jones" <[EMAIL PROTECTED]>
This lawsuit should be of interest to ALL Americans - not just military.
It deals with a breach of contract of monumental proportions and the
results will affect all citizens of this country - one way or another.
Below is the final amended complaint on the class action suit for
retired military, reservists, national guards and their families who
were on active duty prior to 1995. It is now in the public domain and
can be disseminated widely.
Notice has been served on all defendants. Anyone wishing to join the
class action may contact us at:
Campbell & Jones, Attorneys at Law
126 East Main Plaza
San Antonio, Texas 78205
Phone: (210) 224-1923; Fax: (210) 227-4229
Email: [EMAIL PROTECTED]
COVER PAGE
COMPLAINT
PLAINTIFFS herein above named hereby sue the United States of America
for declaratory and injunctive relief and contract, statutory and
exemplary damages on account of DEFENDANTS' intentional breach of
contract resulting in the loss of PLAINTIFFS' bargained for, free
medical and dental care for life.
In the alternative, PLAINTIFFS plead equitable estoppel, which should
grant Plaintiffs' requested relief due to PLAINTIFFS' detrimental
reliance on DEFENDANTS' promises, DEFENDANTS' taking PLAINTIFFS'
property rights without just compensation, DEFENDANTS' violation of the
Equal Protection Clause of the Fifth Amendment of the United States
Constitution, DEFENDANTS' violation of the Due Process Clause of the
Fifth Amendment to the U.S. Constitution, and DEFENDANTS' violation of
the Federal Deceptive Trade Practices Act. PLAINTIFFS claim Suspect
Class status for judicial review of these claims and, in the
alternative, Quasi-suspect Class.
JURISDICTION
1. This Court has jurisdiction over this action pursuant to 28 U.S.C.
=A71331 and 1346(a) and in amounts of damages per person, if any, not to
exceed $10,000.00. Each Plaintiff has exhausted his or her
intra-service administrative remedies.
VENUE
2. Venue is appropriate in this District because many of the PLAINTIFFS
- class members reside within this district.
PARTIES
3. The named PLAINTIFFS are all retired military service members,
officers and enlisted, or the widows or dependents of retired service
members, or dependents of active duty military personnel who are now
required to make co-payments for their previous free medical care. See
Appendix 1 for the names and information for all named PLAINTIFFS.
4. Defendants are the United States of America, the United States
Department of Defense, the Secretary of Defense, the Honorable William
Cohen in his official capacity, and the United States Congress and its
individual members.
FACTUAL BASIS OF THE COMPLAINT
5. Individual plaintiffs are retired military service members,
reservists and national guards inducted into a branch of the Armed
Forces prior to October 1, 1995, spouses of those retired or career
military service members inducted prior to October 1, 1995, survivors
of those retired military service members or active duty military
service members inducted prior to October 1, 1995, and deceased prior to
retirement, along with the legal dependents of all above referenced
PLAINTIFFS. Each PLAINTIFF or sponsor of such PLAINTIFF was promised,
as a means to induce a career in military service, that upon his or her
retirement free military health care benefits (including prescription
drugs and dental care) would continue for life. The continuation of
these benefits, as reflected in the promises made to PLAINTIFFS, was to
be without cost to the service member or his or her survivor or spouse
as long as the service member or his or her spouse lived, and as long as
any dependents remained legal dependents of the service member.
6. As an inducement and retention tool at the time of recruitment,
commissioning, and again at reenlistment, it was the standard and
customary practice of the several military departments to utilize broad
and sweeping promises of a lifetime of free medical and dental care for
the military service members and their dependents. This was an accepted
practice, was stated and restated at every critical step in each service
member's career, and was made nationwide in a systematic and
orchestrated manner under the color of authority of the United States
government. On numerous occasions prior to 1995, PLAINTIFFS, who
enlisted and reenlisted in a branch of military service in reliance upon
the promises of lifetime free medical and dental care for themselves and
their dependents, requested and received free medical care from various
entities organized under the United States Department of Defense. This
receipt of free medical benefits thereby constitutes a ratification by
DEFENDANTS of the contractual promises and assurances of free medical
and dental care. These promises constituted an "implied in fact"
contract. Although 10 USC =A71076(b), enacted in 1956, stipulates
health care for retired military personnel will be on a "space
available" basis, no actual notice was ever given to PLAINTIFFS, who
continued to rely on the contractual promises made by agents of the
government until October 1, 1995.
7. Beginning in 1799, Congress has given authority to the military
departments to provide medical care to military service members,
including military retirees (e.g. 5 U.S.C. 301). One example of this
authorization occurred in 1956, when Congress specifically and
explicitly authorized various military departments to provide free
medical and dental care to military retirees at military treatment
facilities on a "space available" basis, vis-=E0-vis the enactment of 10
U.S.C. In 1966, Congress directed military departments to consider the
needs of retired military service members, their survivors and
dependents when allotting space devoted to medical care. Article 5
U.S.C. =A7 301, gives the Secretaries of the various military service
departments authority to implement 10 USC, and any other rules or
regulations, however they deem appropriate for the management of their
respective services. All of the Secretaries of the military services
utilized that authority by actually providing the free medical care they
had promised to their retired military personnel.
8. DEFENDANTS did affirm this promise and provided continued free
medical benefits to PLAINTIFFS, principally in the form of providing
treatment and other medical services at base facilities. PLAINTIFFS
were treated on par with active duty military service personnel and
their dependents prior to TRICARE, although by regulation they were not
required to do so since they were technically operating on a "space
available" basis.
9. Since the implementation of TRICARE on October 1, 1995, the promise
of free, continued medical benefits has ended. Military retirees have
increasingly been forced to rely on the Civilian Health and Medical
Program for the Uniform Service (CHAMPUS) to meet their health care
needs rather than receive the promised no-cost treatment directly in
military facilities. CHAMPUS was designed to supplement and enhance
health benefits for military service members and retirees, not replace
them. In fact, the legislative intent of CHAMPUS was to provide an =
alternative medical plan for retirees and active duty alike, equal to,
or greater than the highest Federal Employee Health Benefit Plan option
(FEHMP), at a reduced cost.
10. In October of 1995, the Secretary of Defense promulgated regulations
implementing TRICARE, a comprehensive redesign of the health benefits
available to military retirees and their families. TRICARE provides
military retirees with three health insurance-type options: TRICARE
Prime, which is essentially a Health Maintenance Organization (HMO)-type
plan; TRICARE Extra, which is essentially a preferred provider-type
plan; and TRICARE Standard, which is essentially a continuation of the
fee-for-service CHAMPUS plan. None of these options complies with the
expressed legislative intent of CHAMPUS.
11. Medical care in military treatment facilities is available to
military retirees on a space-available basis and is allotted according
to established priorities. Active duty military service members have
the highest priority for treatment in military treatment facilities,
their dependents are next, followed by those military retirees who are
eligible and pay for TRICARE Prime.
12. Active duty military are automatically enrolled in TRICARE Prime.
TRICARE Prime is available to some military retirees who are eligible
for Medicare, and according to recently enacted "TRICARE FOR LIFE", they
will have all costs incurred after Medicare picked up by TRICARE, with
their only costs being the Medicare Part B premiums of $40.00 per month.
Military retirees under age 65 may enroll in TRICARE Prime at a cost
of about $240.00 per year, or $480.00 per year for family coverage.
13. In addition to paying annual enrollment fees, military retirees
enrolled in TRICARE Prime who are not eligible for Medicare are assessed
certain treatment and co-payment charges in excess of those charged
active duty members for their families.
14. DEFENDANTS repeatedly promised PLAINTIFFS free lifetime medical care
for themselves and their dependents as an inducement to devote their
careers to military service. Continued medical care was thus a
component of the compensation provided to PLAINTIFFS throughout
retirement as consideration for their commitment to continue with
military service.
15. While in the past DEFENDANTS honored this commitment, through its
introduction and implementation of the TRICARE program, DEFENDANTS have
breached said promise of free lifetime medical care.
COUNT I
DECLARATORY RELIEF
16. PLAINTIFFS incorporate herein and re-allege paragraphs 1-15 of this
complaint.
17. The provision of continued medical care is a property right and
entitlement as well as an element of deferred compensation,
notwithstanding the Internal Revenue Service's definition of deferred
compensation, owed to each PLAINTIFF.
18. Through its implementation of TRICARE, DEFENDANTS have substantially
diminished the coverage provided to military retirees and the value of
that coverage.
19. DEFENDANTS' diminution of the value of PLAINTIFFS' deferred
compensation is a violation of the Fifth Amendment Takings Clause.
20. Continued medical care is an essential element of the contract that
PLAINTIFFS made with DEFENDANTS.
21. Any discontinuation or diminishment of that promised, lifetime, free
medical care is a substantial breach of either an express or implied
term of this contract.
22. DEFENDANTS discontinued the promised, lifetime, free medical care,
thus the DEFENDANTS breached their contract with PLAINTIFFS.
23. Prior to the implementation of TRICARE, no other federal employees
had ever had their retirement benefits diminished in the manner that
PLAINTIFFS have.
24. Disparate treatment of similarly situated persons is a violation of
the Fifth Amendment to the United States Constitution.
25. DEFENDANTS are treating PLAINTIFFS differently than all other
similarly situated federal employees.
26. DEFENDANTS are therefore violating PLAINTIFFS' Fifth Amendment Equal
Protection rights.
27. Continued free medical care was/is an employee benefit sought for or
acquired by military consumers, and was many times the basis of the
bargain for this particular military contract as these continued free
medical benefits were represented through DEFENDANTS' recruiters,
reenlistment counselors and other agents.
28. PLAINTIFFS incorporate herein and re-allege paragraph 21.
29. The withdrawal of an express or implied promise of lifetime free
medical care is a violation of the Federal Deceptive Trade Practices
Act. This is particularly true since DEFENDANTS continued to make those
same promises of free medical care for life until 1995.
30. DEFENDANTS avoided their express or implied promises that formed the
basis of the bargain in violation of the Federal Deceptive Trade
Practices Act.
31. Military personnel are prohibited from fully and meaningfully
exercising their political rights. For example, military personnel are
prohibited from circulating petitions for redress of grievance, a First
Amendment Constitutional right afforded to all other American citizens.
Military personnel are also prohibited from endorsing any political
candidates or participating in any political fund-raising activities.
32. Irrespective of the fact that any retired military person on
inactive retirement status no longer has the identical First Amendment
constraints as his active duty counterpart, a retired military person is
not on par with a citizen who has never served in the military because
of his or her career-long history of First Amendment disenfranchisement.
33. The promise of free medical care for life, the subject of this suit,
was not made solely to those who freely and voluntarily joined the
military, but also to those who were conscripted into the military, as
an incentive to continue their military careers.
34. Veterans as a class of persons are a discrete and insular minority.
35. Veterans have been previously recognized as a discrete and insular,
disenfranchised minority through programs such as civil service
employment veteran hiring preference, the G.I. Bill in education, and
the Veterans' Land Board.
36. The constitutional standard of review for discrete and insular
minorities is that of strict scrutiny.
37. PLAINTIFFS incorporate herein and re-allege paragraphs 31-36.
38. PLAINTIFFS pray that the standard under which this case will be
reviewed will be that of strict scrutiny, due to the military veterans
status as both a suspect class and a discrete and insular minority.
39. PLAINTIFFS have relied on DEFENDANTS' promises of free lifetime
medical care.
40. DEFENDANTS, until 1995, did in fact, reward military retirees with
free medical care.
41. DEFENDANTS should be equitably estopped from their attempts to avoid
fulfilling their obligations under such promises and/or contracts.
42. PLAINTIFFS have relied on the promises made by the federal
government for free lifetime medical coverage, to their detriment.
43. DEFENDANTS should not be allowed to now claim that a contract did
not exist, leaving no remedy to the millions of military service men and
women who relied on said promises.
44. Public policy should dictate that a strong military be maintained
for national security and defense.
45. Allowing the federal government to arbitrarily refuse to honor prior
contracts and promises for lifetime free medical services would be
detrimental to the security of the nation because it would hinder the
military's ability to attract new enlistees and retain quality service
members in a career status, thereby diminishing the readiness of the
military.
46. PLAINTIFFS argue that public policy should require the government to
faithfully execute and perform the contracts and/or promises for
lifetime free medical care to retired military personnel.
47. PLAINTIFFS have exhausted all of their administrative appeals and
remedies.
48. PLAINTIFFS have applied for no-cost medical treatment and been
denied, as evidenced by letters indicating a denial of service from
Brooke Army Medical Center.
WHEREFORE, PLAINTIFFS request that the Court declare that DEFENDANTS
have taken PLAINTIFFS' property without just compensation in violation
of the Fifth Amendment, that DEFENDANTS have violated the Equal
Protection Clause of the Fifth Amendment of the United States
Constitution by treating PLAINTIFFS differently that all other federal
employees, that DEFENDANTS have violated the Federal Deceptive Trade
Practices Act by misrepresenting the terms of PLAINTIFFS' employment
contract, and that DEFENDANTS substantially breached their contract with
PLAINTIFFS resulting in the loss of PLAINTIFFS' free medical and dental
care for life, and that DEFENDANTS are equitably estopped from reneging
on their contract with PLAINTIFFS in that PLAINTIFFS detrimentally
relied on the DEFENDANTS' promises.
Count II Damages
49. PLAINTIFFS incorporate herein and re-allege paragraphs 1-48
of this complaint.
50. DEFENDANTS' actions in diminishing the value of PLAINTIFFS'
compensation is a taking of property for which PLAINTIFFS are
entitled to just compensation.
51. DEFENDANTS' breach of the enlistment contracts with
PLAINTIFFS constitutes a breach of contract resulting in the
loss of their free medical care for life.
52. DEFENDANTS' withdrawal of PLAINTIFFS' free Medicare for life
constitutes a violation of the Equal Protection Clause of the
Fifth Amendment to the United States Constitution as it
pertains to PLAINTIFFS.
53. DEFENDANTS' actions in allowing their agents to
promise free medical care for life and to subsequently withdraw same is
a violation of the Federal Deceptive Trade Practices Act.
54. DEFENDANTS' implementation of TRICARE in 1995, was in violation of
the Due Process Clause of the Fifth Amendment of the United States
Constitution, inasmuch as PLAINTIFFS did not receive proper actual
notice before their health care benefits were diminished, nor did
PLAINTIFFS receive proper actual notice before their contract was
breached with the enactment of Article 10 U.S.C. in 1956.
55. Plaintiffs claim suspect class status for the judicial review of
this case and, in the alternative, Quasi-suspect class status.
WHEREFORE, the individual PLAINTIFFS request that the Court award them
as damages, compensation not to exceed $10,000 each, and that DEFENDANTS
be estopped from denying free medical care to PLAINTIFFS in the future
as injunctive relief.
JURY DEMAND
PLAINTIFFS demand trial by jury.
Respectfully submitted:
___________________
Philip Earl Jones
TBN: 24012928
CAMPBELL AND JONES
126 East Main Plaza
San Antonio, Texas 78205
(210) 224-1923 telephone
(210) 227-4229 facsimile
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