September 20, 2018, Trial News
Veterans appeals court will hear class action, certification question for first time
For the first time, the U.S. Court of Appeals for Veterans Claims has determined that it may decide class action certification in petitions for writ of mandamus and that Federal Rule of Civil Procedure 23 will govern its analysis. In a case involving a petition for writ of mandamus against the Department of Veterans Affairs for unreasonable delays in replying to appeals of disability benefits denials, the court concluded that it has the authority to conduct limited fact-finding to answer the question of whether to certify a proposed class under Rule 23. The court’s chief judge called the decision a “seismic shift.”
For the first time, the U.S. Court of Appeals for Veterans Claims has ruled on a class action certification in a petition for writ of mandamus and has determined that Federal Rule of Civil Procedure 23 will govern its analysis of class claims. In a case involving a petition for writ of mandamus against the Department of Veterans Affairs (VA) for unreasonable delays in replying to appeals of disability benefits denials, the court concluded that it has the authority to conduct limited fact-finding to answer the question of whether to certify a proposed class under Rule 23. The court’s chief judge highlighted the significance of the decision to hear class actions, calling it a “seismic shift.” (Monk v. Wilkie, 2018 WL 4043242 (Ct. App. Vet. Cl. Aug. 23, 2018).)
Conley Monk filed a petition for writ of mandamus with the U.S. Court of Appeals for Veterans Claims requesting an order that the secretary of the VA decide disability compensation claims within one year after the claimant filed a notice of disagreement. Monk alleged a Fifth Amendment due process violation and proposed that the writ cover similarly situated people experiencing “financial and medical hardship.” The court, which does not have its own rule for collective actions, interpreted this as a motion for a class action under Federal Rule of Civil Procedure 23, and it denied the petition on the basis that it could not decide class claims. Monk appealed, and the Court of Appeals for the Federal Circuit reversed the lower court—finding that it could hear class claims—and remanded. The Court of Appeals for Veterans Claims then reconsidered its ruling en banc.
On remand, an amended petition redefined the putative class as including all veterans who applied for and were denied disability benefits who then filed a timely notice of disagreement with the VA and had not received a decision within one year. In its reversal, the Federal Circuit had determined that the All Writs Act, which authorizes the veterans claims court to issue a writ of mandamus, also allows the court to consider aggregate claims for a writ. It also pointed to two statutes, 38 U.S.C. §7264(a) and 38 U.S.C. §7261(a)(2), that authorize the court to “create rules and procedures it needs to exercise its jurisdiction” and to “compel action of the Secretary unlawfully withheld or unreasonably delayed”—neither of which are limited to individual actions. As it considered on remand the parameters for assessing class action claims, the veterans appeals court further concluded that it could conduct limited fact-finding to decide whether a class should be certified and that it would follow Rule 23 when making such a determination.
As to Monk’s class claims, the court considered the VA claims appeal process and found that the putative class did not meet Rule 23’s certification requirements. The court focused its analysis on the commonality prong of the class certification test and the U.S. Supreme Court’s ruling in Wal-Mart Stores, Inc. v. Dukes (564 U.S. 338 (2011)). Commonality requires more than class members alleging a violation of the same law; the violation must be redressable on a classwide basis.
The court disagreed with the petitioners’ argument that the delayed responses to their claim appeals were enough to satisfy commonality and that the length of individual class members’ delays was irrelevant as long as the delay exceeded one year. It found instead that “the reasonableness or unreasonableness of VA’s delay is a key element of each petitioner’s claim” and that the length and cause of delay in each case were relevant factors for the court to consider when adjudicating a class member’s claim. “Because reasonableness and unreasonableness are relative concepts, it is impossible to determine whether the VA’s delay in adjudicating disability compensation claims falls into either category without exploring the reasons for the delay,” the court explained. The court was persuaded by the VA’s argument that in each disability denial, factors may have affected the response time to an appeal—such as providing a hearing on the claims—that were not objectively unreasonable merely because the reply exceeded a 12-month cutoff. If the class had alleged that a particular VA policy or systemic behavior affected all class members in the same way, however, that could satisfy commonality since it would not require a case-by-case consideration of the underlying facts.
Despite not certifying this class, Chief Judge Robert Davis wrote, “This holding is a seismic shift in our precedent, departing from nearly 30 years of this [c]ourt’s case law. The fact that the [c]ourt did not find aggregate action appropriate in this case does not change the fact that this is a watershed decision. . . . On the contrary, the [c]ourt’s decision will shape our jurisprudence for years to come and, I hope, bring about positive change for our [n]ation’s veterans and ensure that justice is done more efficiently and timely.”
Williamsville, N.Y., attorney Jeffrey Marion, who represents veterans and their families, echoed Davis’s statement. “The problem for each and every veteran seeking disability compensation is that he or she is out on an island,” he said. “If veterans are allowed to proceed as a class in claiming a denial of their due process rights, it only strengthens their ability to change a system that is designed to crush them under a tractor-trailer-sized wheel of bureaucracy.”
Marion also explained how class actions could help veterans who have faced seemingly unending hurdles in the VA system. “Many veterans simply give up after years of seeing their cases denied by a regional office, appealing, having the Board of Veterans Appeals remand for further development, getting another denial from the regional office, another remand from the board, and so on. Other veterans have died waiting for their claims. The VA policy is that, when a veteran dies, his or her claim dies as well,” he explained. “Nothing breaks my heart more than hearing from a client’s family that he or she has passed on, believing until the very end that the VA would do the right thing. Those veterans will be able to have their claims fairly and expediently decided. The benefits of class certification to veterans not just in the system currently but to those who have long since given up hope would be massive.”