Founding partner Robert Chisholm and attorneys Maura Clancy and Brad Hennings take a closer look at a recent decision from the Court of Appeals for Veterans Claims (CAVC, or “the Court”) in an impromptu Facebook Live broadcast.
- What is a class action?
- What is a Petition for a Writ of Mandamus?
- Overruling Harrison & Class actions at the CAVC
- How many judges decided this case? What happens when you have a tie?
- Judge Schoelen’s opinion & the VA appeals backlog
- “Commonality” in the class action
- Rule 23 and class action lawsuits (numerosity, commonality, typicality, and adequacy)
- Fact-finding at the Court of Appeals for Veterans Claims
- Chief Judge Davis’s opinion, the need for radical change
- Delays in the veterans’ benefits system
- Judge Allen’s opinion (dissent)
- Commonality according to Judge Allen vs. Judge Schoelen
- A road map for future class actions
- Judge Greenberg’s opinion (complete dissent)
- Final takeaways
Robert: Good afternoon. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. Joining this afternoon is Maura Clancy and Brad Hennings and we’re here today to talk about a case that literally just came out today called Conley Monk vs. Robert Wilkie and this is a big case for a whole host of reasons. It is a complicated case and we’re going to give you our hot take on it. I’m not telling you this is our most reasoned analysis because we just started reading this 37-page decision and there’s more than one opinion in this decision. So without further ado, we’re going to jump right in and talk about it but before we talk about Monk, I thought it’d be good to just do an overview of first of all what a class action is and then talk about the type of case this is because this is not an appeal of a Board decision. It’s a petition for writ of mandamus. So Brad, let me go to you first and if you could just sort of talk briefly about what a class action is in general terms.
Brad: Well, I would- you typically think of class actions when individuals have been harmed let’s say by a drug. So many people have heard it with the Vioxx or any number of other medications. They were hurt. There were hundreds of thousands of people potentially affected and so what they did was rather than having a hundred thousand different cases all tried separately, they combine them into what they call a class and so they were able to decide all of the common legal issues and common factual issues all at the same time.
Robert: And normally the court hears appeals from the Board of Veterans’ Appeal so if there’s a final decision from the Board of Veterans’ Appeals, veterans have the right within 120 days to file that appeal in the Court of Appeals for Veterans Claims but this case, Mr. Monk’s case, did not arise from that. It arose from a petition. So Maura would you mind telling us a little bit about what’s unique about a petition for writ of mandamus.
Maura: So initially this person filed a, as Robert said, a petition for a writ of mandamus which is basically a request to the court to order, in this case VA, to do something. So it’s a petition that says that the petitioner or the person who is making this allegation has been harmed in some way and they’re asking the court to grant them relief by ordering VA to do something. So they want to compel action by VA. It’s not stemming necessarily from a Board decision as you said so it’s different in that way but it is asking the court to take action and to issue an order to VA on a particular issue.
Robert: So we have to go in the way back machine here and by that I mean we have to go back to one Vet App and then one Vet App, the Court of Appeals for Veterans Claims issued a case called Harrison, I believe that is the name, hope I got that correct- vs. Dewinsky. And in Harrison, the– I think it was an en banc court back then, decided that they did not have the ability to hear class action lawsuits. And so Monk comes along many years later and files a petition for writ of mandamus as you said Maura and the CAVC says, “No, we don’t have the authority to do that.” The Monk petitioners, because it’s not just Mr. Monk, there are other people along with Mr. Monk, appealed to the United States Court of Appeals for the Federal Circuit. And the Federal Circuit says, “Wait a minute, yes you, in fact, do have the ability to hear class action but we’re going to leave that up to you, CAVC, to decide how you want to do that.” And so that brings us to today’s decision. This case is actually coming back from the Federal Circuit and now the CAVC has announced in part and given some guidance as to how they’re going to think about it at least and the reason I say in part because there are a lot of questions that we have after reviewing the decision. So in the usual en banc case, we have a clear majority, I don’t think we have that here so let’s start off with how many judges actually decided this case?
Brad: To the– there was only a total of eight judges that decided this case. There are nine judges of the Court of Appeals for Veterans Claims but only eight participated because the ninth was appointed after they heard argument on this case. And the reason that’s an issue is that that’s an even number so what happens when you have a tie? And that’s exactly what we had here. We had a tie. It was four to four as to the decision.
Robert: So we’re going to talk about Judge Schoelen’s opinion first because I think her decision is sort of controlling the outcome here in essence, and whether we call it a plurality opinion or something else, my sense is that it is a plurality opinion. I think we should start with her opinion if we could go there. And what I would like to do is point out and we have a link I believe on our website to the decision. All 37 pages if you want to see it, please feel free to go to our Facebook page and get that. What I found really interesting first off, is from pages I think three to five. The court does a really good overview of what the claims adjudication process is presently. And the reason I say presently is because the whole thing is going to change very soon with Appeals Reform. We have a lot of information on our Facebook page about Appeals Reform but what we’re talking about here is the appeals process that has been in place for over, excluding the court part, over 50 years in essence and it lays it out in great detail so I really– I thought that was a step in the right direction and in one opinion, the court was able to finally explain the overview of the process. And that’s important because the main complaint of the petitioners is about delay. And we who have practiced in this area for years and Maura, you’re more recently. We’ve all experienced the delay in the adjudication system, in fact, yesterday in the Wall Street Journal, there was an article about delays in the system. And what the petitioners are essentially arguing as I understand it is that it’s taking too long and the court needs to step in and provide a remedy at the end of the day. That’s what the case is essentially about. So that was my first thought about Judge Schoelen’s opinion. Who wants to go next?
Maura: Well so, just to be– so the way that I read it and I think I agree with everything you said, I think in this case, the specific complaint that the petitioners had so the whole class had was that after a veteran files a Notice of Disagreement, there– it takes too long to get a decision after filing that initial appeal. So the claims process will start with a claim, typically next is a rating decision from VA. If that denies the claim, you have a right to file a Notice of Disagreement. But the process after that can be very lengthy just to get a couple of decisions from VA that essentially say the same thing. So these petitioners were saying that there was too much of a delay in the amount of time that it took VA to finish up with their claim so that they can move on with their appeal. And I think the primary thing that the court focused on in addition to giving that background of the claims process was they looked at whether all of the petitioners as a class met what they call the commonality element. So what they wanted to know was, do all of these petitioners allege the same injury or harm as a result of VA’s action or in this case, inaction? And that was the big hang up that kept them, I think, from allowing this class to move forward and pursue this action was because they found that even though all of these veterans had made the same allegation that the claims process was taking too long, they were at various stages of the claims process and there was no way for the court to know, or so they said, that they had all been delayed in the same way. So for instance, some people were waiting on further development from VA and some were not. Some people may have been waiting on a hearing to be scheduled for them and then others may not have been. So the court wasn’t comfortable saying that they all had the same thing in common without knowing for sure that they had all been in line essentially for the same amount of time and were just waiting on the same things from VA. Does that make sense?
Robert: I think it does make sense and if I could just clarify one thing and it wasn’t evident initially when I read the decision to be honest with you, I think the main complaint is how long it’s taking for them to issue the Board decision. And although it wasn’t clear in the pleadings, that is all the documents filed in court, it was made clear at oral argument that the complaint was how long it was taking from the NOD to get a Board decision. And so that’s just one thing I wanted to add. So the court says and this is the– this is the important thing at the end of the day and everyone agrees I think on this point that the court can hear class actions. So the Federal Circuit overruled Harrison as to that first part of Harrison. There are two other parts of Harrison that I don’t think are explicitly dealt with in this decision but it’s clear after this decision that the court can hear class actions. And although they decided not to hear this class action, they sort of provide guidance, a little bit of guidance as to under what circumstances class actions could be used. So they go to Rule 23. And Rule 23 is from the Federal Rules of Civil Procedure and it lays out a test for US district courts to follow in class action lawsuits and there’s basically four things that they’re going to look at. And the reason they’re going to Rule 23 Brad as I understand it is the court has not yet adopted its own internal rule or its own rules for its practitioners as to how they’re going to handle class actions.
Brad: That’s right. So when the Federal Circuit told the Court of Appeals for Veterans Claims they could and did have the authority to handle class actions, the court sort of leapt into action with they have what they call the Rules Advisory Committee which helps them set the court’s rules. And so they asked for suggestions and they also got a group of experts together to discuss how best to implement the Federal Circuit’s decision. However, the court has not yet adopted official rules as it relates to class actions and so what it said was, “We’re going to work under this Federal Rules of Civil Procedure Rule 23 as our guide at least for now until we adopt formal rules.”
Robert: So I’m just going to go through quickly the four steps that the court’s going to look at under Rule 23. The first one they call numerosity, that is the class is so numerous that joinder of all members is impractical. Commonality, there are questions of law or fact common to the class, as you were just discussing, Maura. Typicality, the claims or defenses of the parties are typical of the claims and defenses of the class. And adequacy, the representative parties will fairly and adequately protect the interest of the class. And this case falls apart on commonality at the end of the day. Judge Schoelen along with Judges Davis, Pietsch, and Judge Meredith decide that there are not common questions of law or fact and it really I think at the end of the day for them it seems to me to boil down to there could be any number of reasons for delay. And those issues are not going to be common across a whole class of people waiting for the time period from the Notice of Disagreement until a Board decision. So the only other thing I wanted to point out is, going forward the court is saying on page three of the decision that it has the authority to conduct limited fact finding to determine whether class certification is warranted. So let’s start with fact-finding in general. In the Agency, the Board is the one who makes the final terminations of fact finding– does the fact finding. And then the court has the power to review and reverse those under very limited circumstances. But the court can engage in fact finding. And one area where they have historically engaged in fact finding is determined whether equitable tolling applies to a case for example. And this is a new avenue in essence for them to engage in fact finding. And what strikes me immediately as someone who used to litigate cases before, before courts and not in the appellate level, is how’s the court going to do fact-finding? Will appellants and/or petitioners be able to conduct any kind of discovery? So one could imagine a situation where the VA submits affidavits as they do in these equitable tolling cases but how will we be able to sort of test the veracity of those affidavits without some kind of discovery? So I think that’s a very interesting question that’s going to come up in future cases. Anything else on Judge Schoelen’s opinion that we want to hit?
Maura: I think just going off of that point too Robert, one of the things that was said and I can’t find the exact page was that Judge Schoelen sort of says that the petitioners didn’t explain what the reasons for the delay were so.
Maura: And– and that sort of speaks to your point about why discovery might be necessary under these circumstances because if they said that the petitioners didn’t have enough in common to meet the commonality requirement to show a very common thread among all of the delays that they were experiencing, how can we make sure that the petitioners are well situated to be able to bring forward all the facts that the court needs to really make that determination especially if they rest at VA and the petitioners need access to those things to be able to, you know, make out their entitlement.
Robert: Yeah and I think that’s a really good point. I mean we have seen over the years report after report after report talking about the delays, theorizing about what caused the delays but in order to really prove what’s causing the delays, you would want to as a litigator I think, pose some questions, depose some people to get at the at the heart of the matter. I think we all have our own ideas about it. But can we prove it concretely? I mean I think that’s a really good point. So the next opinion I wanted to go to was Chief Judge Davis’ opinion. He concurs in the results. He follows Judge Schoelen’s opinion, he says I fully support it and he notes right at the beginning of his opinion that 5 to 7 years generally for claims processing at VA is unreasonable. And with a backlog of more than 450,000 cases, the claims processing system needs to be radically changed. And that kind portends what’s coming next, Appeals Reform. It will be a radical change, in my opinion. We don’t know how it’s going to play out yet. If I’m being honest, I have reservations about whether VA’s ready for it. I think the last congressional hearing showed that VA isn’t ready for it at least technologically yet in terms of their IT systems. But we’ll see how that goes. And again I want to mention the Wall Street Journal article is right on point with what Judge Davis is writing about that. That was in yesterday’s paper. But I think Judge Davis’ main, my main takeaway here is that this is a groundbreaking decision in his mind because it opens the way, paves the way for class action lawsuits and although they didn’t agree on everything, they agreed on the most important points from his perspective and that there will be a class action lawsuits, just not this case.
Brad: And getting back to what we were just talking about because Judge Davis goes into it in a little more detail as to what are the cause of these delays in the system? Judge Davis points out that there really are different kinds of delays in the claims process. One are what he calls unlawful delays which are what they call administrative or ministerial tasks where you look at something and it’s all someone needs to do is fill out a form or press a button and the case should move on and that’s taking years and years which the Federal Circuit has taken note of. On the other hand, sometimes a veteran will submit additional evidence and so that triggers VA’s duty to assist by getting additional medical examinations or other records from the Department of Defense, the archives. You know, those are good reasons for a certain amount of delay because they’re going towards what is necessary to substantiate the veteran’s claim.
Robert: I think that’s a really good point and he does explain that. So at this point, I want to just pause and express a little bit of frustration because it seems like and I’m sure the petitioners feel the same way. But having been in the system as someone who’s represented veterans for over 25 years before the Court of Appeals for Veterans Claims. It’s– we’re taking steps but we haven’t crossed the final goal line if you will or scored the goal if you will on how this is actually going to play out so there are still a few steps and hurdles that we need to overcome here.
Brad: And I think you see really an institutional reluctance on behalf of the court to really get into the nitty-gritty and they talk about that in some of the dissents that we’re going to get to. But again the court doesn’t want to wade into that or has historically shown reluctance to wade in to those details.
Robert: So I think that brings us now to Judge Allen’s opinion. And in fact it’s interesting the extent to which both Judge Schoelen’s opinion and frankly Judge Davis’ opinions comment on Judge Allen’s opinion. And one would think that Judge Allen’s opinion is kind of like the majority but in fact it is a dissent. But he does agree, Judge Allen states at the beginning of his opinion that he does agree that this is, first of all, a very important case and he does go into the specific things that he agrees with that the court did decide and then he explains why he would certify this as a class action. So why don’t we go through that. You know, any time a judge starts out with Bleak House and the case of Jarndyce vs. Jarndyce from Charles Dickens’ novel, you know you’re dealing with a system that is chronically delayed. It is an apt and oft-used literary reference in legal cases and it’s apropos for the situation, it seems to me as well. So, I think my main take away here is that Judge Allen looks at this through a different lens than Judge Schoelen’s plurality opinion. And he first starts off talking about Harrison vs. Dewinski. That was the case that originally held back in 1991 that they couldn’t hear class action lawsuits and although Monk only overruled part one of that decision, he would expressly overrule parts two and three but that hasn’t officially been done yet. I think that’s an important point to start off with because by undoing Harrison completely, they’re in my opinion able to start from scratch and really develop a rule. I think it’s appropriate to start with Rule 23 until they come up with their own rule as a guidepost. But we’ll get to that down the line in terms of like what the future’s going to hold? But do one of you want to sort of tackle the commonality issue and how Judge Allen saw it versus how Judge Schoelen saw it?
Maura: I think that he framed it differently and that he wasn’t so concerned with the specific reasons why the petitioners were experiencing delay. He was more focused on the fact that all of them had alleged that VA was delaying the adjudication of their claim so while the majority opinion, Judge Schoelen’s opinion, I don’t know if we can call it a majority, but Judge Schoelen’s opinion stated that they all had different reasons that were driving the delay and so they couldn’t across the board say that they had the common complaint of unreasonable delay. Judge Allen is saying they have all experienced the delay. They’ve all allege that and they’ve made out that fact and so whether the delay is due to valid reasons at VA, maybe as Brad was saying earlier, they needed to do duty to assist type things, they needed to get exams, or whether the delay was unreasonable or unlawful as Chief Judge Davis said, they were just waiting for way too long to check a box or fill out a form. He said that that was a secondary concern so that didn’t go to whether you could entertain the class. It just goes to whether they all made their case for an unreasonable delay because the specifics of the reasonableness, you know is an ancillary inquiry that he didn’t want to address this point, he just said the delay is common to all of them and so they meet that standard.
Brad: So I think a good analogy is thinking about let’s say you have a dinner interview set up and so you meet with, it’s two people. You meet with the interviewer and you’re about to head into a restaurant and the interviewer starts asking questions before you’ve even sat down and had a chance to look at the menu, order a drink, order anything else and decides to conduct the interview before dinner and you say, “Hey, what I really want to do is why don’t we go down. Sit down. Have a drink. Look at the menu and then we’ll really get into the heart of whether you think I’m a good fit for this job.” So it’s a similar kind of thing where Judge Schoelen is saying we need to have this conversation outside the restaurant. Judge Allen is saying we need to have it in the restaurant maybe while we’re sitting down and having drinks.
Robert: Yeah I like that analogy because I think there is – I think the way Judge Allen saw the plurality opinion is they were getting to the end of the decision as opposed to sort of the threshold or initial kind of question of “Hey, are these issues common enough at least for us to decide?” We’re not telling you how we’re going to decide but it seems to me that this meets the commonality test so that we can decide. So I think– I think there’s going to be tension between members and the judge when the– as these cases go forward over this particular issue. And, you know to be frank, when I– when Monk was first filed, I said, “It’s too broad. It’s too– it’s too much.” And then as I’m reading Judge Allen’s decision, I’m like, well maybe I need to think about it a little bit differently, and it has helped me sort of get my head around this in a– in a different way frankly.
Brad: And I think Judge Allen got into that a little bit in his decision talking about, hey maybe these aren’t the perfect set of facts for us to make this big decision on class action but this is what we have and I think there’s enough here that we should move forward with the case even if ultimately it is not going to go in the petitioners’ favor.
Robert: Great. I think that’s exactly right. He then goes through having found commonality, he then goes through the other parts of the test and he finds numerosity. He finds typicality. So this then becomes the road map in my opinion for future practitioners who want to file a class action to say, hey, have I met this test? This is how to think about it so to that extent, laying it down on paper in the veterans law context will help future appellants, petitioners, attorneys representing veterans before the CAVC it seems to me. So, I do have to point out, there are a lot of footnotes in this opinion but this one that struck me as really interesting was he does go through and explains how one would answer the question of adequacy of representation. So the idea being that the– If you’re going to certify a class, you want to make sure that class has competent counsel and the specific factors laid out in Rule 23 as to who is qualified to do that. And footnote 61, I just have to read this. “The VA Secretary suggests it’s unclear whether petitioners’ counsel are adequate representatives for the interest of the absentee class members.” And he notes in this footnote Judge Allen, “the Secretary may disagree with the legal theory the petitioners advance but to argue that a prominent national law firm with extensive class action experience and Yale Law School are not adequate as counsel, in this case, is entirely frivolous.” So it’s interesting to me that he would have found immediately that the Yale Law School and the law firm of Simpson Thacher & Bartlett were adequate and really goes after the Secretary a little bit for their hesitancy in that regard.
Brad: I think it shows you what a sort of hermetically sealed world veterans law traditionally has been so outsiders are not always very welcome.
Robert: Right. I think that’s a good way to put it. But he would have clearly found that the counsel was competent and able to handle this. No dispute here on that fact. So this case arose in the context of a petition for writ of mandamus. The court will now have to grapple with, well, can they hear class actions on a direct appeal of a decision of the Board of Veterans’ Appeals. That seems to be- well, first they have to find a case where they actually certify right? I mean it could come up in the petition sense or it could come up as an appeal so that to me is an interesting issue going forward. And how is the court going to handle these cases? We know, for example, there’s another case that’s scheduled for argument. I think it’s– Is it the Scar case? If I’m not mistaken.
Brad: Yeah I think so.
Robert: And that’s coming up soon so we may– Some of these issues may be resolved there if they can make it through the Rule 23 class action prerequisites. That case is also brought on behalf of on Yale Law School and I’m not sure who’s working with them on that particular case. But that case is already scheduled for argument so that’s something to pay attention to going forward. But my main takeaway is we have a roadmap now and that’s important for practitioners going forward. There’s a lot of questions remaining. We should talk a little bit about Judge Greenberg’s dissent. It is, in fact, a complete dissent. He did not agree with any aspect of Judge Schoelen’s opinion because he didn’t want to go to Rule 23. He sort of wanted to do this on a case-by-case basis. And I think that’s problematic as a practitioner because you don’t know what the roadmap is. You don’t have a clear framework within which to posit your case if you will.
Brad: I think you know, Judge Greenberg would really like to plow forward and have used this case as a test case and say, we’re going to– we’re going to fly the plane as we’re building it so to speak.
Brad: And sort of go from there. He would be much, much tougher on the VA and on the Secretary and he is much tougher on the government in general here. What I think is interesting is he talks about the Veterans for Common Sense litigation which occurred back in, the decisions were in 2011 and 2012. And those cases, they were brought in California federal courts and ultimately in the Ninth Circuit Court of Appeals and it was a very similar set of issues dealing with delay and issues with the whole claims adjudication process. That ultimately was overturned by the Ninth Circuit Court because the initial decision was likely to result in a special master being assigned in San Francisco running the VA claim system.
Brad: So the federal– the Ninth Circuit ended up stepping in en banc and saying, “Well no. We’re not– we’re not going to do this.” They threw the whole thing out. But Judge Greenberg would like to do something similar and he thinks you could take former members of the Court of Appeals for Veterans Claims and have them run this– this litigation and really put some teeth into what they’re talking about.
Robert: He writes, Judge Greenberg, that Rule 23 is a tempting minefield for the unwary. Its use as a guide creates another self-imposed barrier by the court and simply demonstrates how quickly the court can adjust its timidity and refuse to get on with it. And I think that’s what you were talking about institutional reluctance at the end of the day.
Brad: And that’s a much larger conversation about the court’s reluctance to get in there but Judge Greenberg’s made pretty clear over the last six years, he went on the bench in 2012, that he’s certainly willing to shake things up and isn’t– doesn’t want to be bound by some of the traditions and institutional reluctance the court has always had.
Robert: I think that’s true. Any other thoughts that you want to– I mean it’s so we’re doing this on the fly. We didn’t rehearse this at all so apologies for all that. We thought it was important to get out the idea of what this case represents at the end of the day so if anyone wants to share any final take aways? I don’t know if we have any questions. I’m not sure how many people are following because we didn’t really pre-announce this but that’s ok. But final take aways.
Maura: I just think that I mean, maybe it’s been a long time coming for this but I think a lot of this is very helpful going forward so the fact that they’ve– they said that they will entertain the class, they’ll entertain an aggregate action of this kind, it may not have been the result that we would all want to see or certainly that the petitioners wanted to see. But like you said before, I think this is very going to be very helpful going forward when we consider doing things like this so when others consider filing this type of litigation because there is a lot here from both sides so you really do get a roadmap from people that might be a little more or the judges that might be more stringent in what they require and then you sort of have the opposite and then you have a lot that’s in between so I think it’ll be interesting to see what the next one comes out to.
Brad: I think it’ll also be interesting to see because two of the judges who were in the plurality– plurality opinion, their terms will end in December of 2019 and so that will be interesting to see because then you’ll have the judges who were in the dissenting opinions in the majority.
Brad: So to be continued.
Robert: To be continued and we will continue to monitor this as we go forward. To me, at the end of the day this is probably one of the most important decisions in terms of specifically stating that the court now has the authority to hear class actions and provide some guidance as to how they are going to deal with them going forward. For the right case, it will have a dramatic impact on the VA. The court will be able to hear and decide one way or the other whether a policy or procedure, I think they want to, my sense is that they want to get narrow with things whatever those might be, could have a dramatic impact on the way claims are handled at the VA and I hope for the better going forward so I am cautiously optimistic for the future about this. But a lot of questions to be determined. If upon reviewing this, you have any questions, please reach out to us on Facebook and we’ll give the best answer we can. So I basically corralled both Maura and Brad this afternoon to talk about this so I really appreciate you both stepping up and talking with our audience today about this. So thank you and goodbye.