Class action or similar “aggregate resolution”
On April 26, 2017, the Federal Circuit ruled that the U.S. Court of Appeals for Veterans Claims (CAVC) has authority to certify a class action or similar “aggregate resolution” procedure, overturning the CAVC’s en banc decision in Harrison that it does not have the power to entertain class actions.
A class action is a type of lawsuit where one party represents collectively an entire group of similarly situated members. Class actions are often used in cases where a large number of people are adversely affected by the same type of situation. An aggregate, or collective, resolution procedure would be comparable to a class action in that it would similarly resolve a specific issue for all members of the group if the case was decided in their favor.
The Court of Appeals for Veteran Claims, which is independent from the Department of Veterans Affairs (VA), handles appeals of final decisions made by the Board of Veterans Appeals (a.k.a. the Board or BVA).
In April 2015, Conley Monk, Jr. filed a petition with the Veterans Court to bring a class action against the VA, asserting that delays in disability claim processing times were adversely affecting thousands of disabled veterans, including himself. The Veterans Court rejected the petition, stating that it has a “long-standing declaration that it does not have the authority to entertain class actions.”
The Federal Circuit ultimately disagreed, reversing and remanding the Veterans Court’s decision to reject Mr. Monk’s class action request. This means that the Veterans Court will now have to 1) create a mechanism or method for hearing class actions or similar aggregate claims, and 2) decide whether Mr. Monk’s proposed “class” would meet the criteria for a class action.
The implications of the Federal Circuit ruling could be momentous for disabled veterans. The introduction of class actions into the VA appeals process could address many issues VA consistently struggles with, correcting systemic errors en masse instead of one at a time and potentially reducing wait times. Additionally, class actions promote consistency and fairness because, when considered together, veterans in similar situations would be subject to the same decision.
In February 2012, Conley Monk, Jr., a Vietnam veteran and former Marine, filed a claim for disability benefits at his local VA. He claimed service connection for PTSD, diabetes, hypertension, and strokes. In early 2013, VA denied his claim because his discharge was “other than honorable.”
Mr. Monk challenged the VA decision, filing a Notice of Disagreement (NOD) and a hearing before a decision review officer. Separately, he applied to the Board of Correction of Naval Records (BCNR) to upgrade his discharge status.
In February 2014, the hearing was held. In March 2015, the VA still had not decided Mr. Monk’s claim, informing Mr. Monk that it could not process his appeal until it received records from the BCNR.
Finally, in April 2015, Mr. Monk filed a petition for a writ of mandamus with the Veterans Court and petitioned the Court to certify a class (i.e. approve a group of veterans with a common legal interest) for a class action on behalf of himself and thousands of similarly situated veterans. Mr. Monk proposed a class made up of veterans who:
- applied for benefits and were denied,
- filed a timely Notice of Disagreement (NOD),
- had not received a decision within 12 months,
- demonstrated medical or financial hardship as define by 38 USC 7107(a)(2)(B)-(C), and
- were in any stage of the appeals process
Mr. Monk argued that the class members shared common questions of law and fact, including whether or not the VA’s delay in making decisions on disability claims violates veterans’ due process rights. Data indicates that veterans face, on average, about four years of delay between filing a NOD and receiving final Board decision.
The Veterans Court rejected Mr. Monk’s request for a class action or other aggregate relief on the grounds that it lacks authority to maintain class actions, stating that “[i]n the absence of such authority, no other arguments matter.”
The Federal Circuit, however, concluded that the Veterans Court’s decision was an “abuse of discretion” and that it does indeed have such authority under the All Writs Act, the Veterans Judicial Review Act (VJRA) of 1988 (which led to the creation of the CAVC), as well as the CAVC’s own inherent powers.
All Writs Act
Generally, class actions are implemented according to Federal Rule of Civil Procedure 23 (known simply as Rule 23). The Veterans Court argued, and the Federal Circuit agreed, that Rule 23 was not applicable to the Veterans Court. However, the Federal Circuit concluded that the Veterans Court could use the All Writs Act to aggregate claims, citing the United States ex rel. Sero v. Preiser decision in which the Second Circuit found that a district court properly maintained a class action under the All Writs Act when Rule 23 did not apply.
The All Writs Act, codified at 28 U.S. Code § 1651, allows federal courts to issue writs, or written orders, necessary to aid their jurisdiction (i.e. the legal sphere over which the court has authority – in this case, veterans disability claim appeals). Essentially, the Act allows federal courts to fill gaps in their judicial power when there is a need for action or the creation of a procedure and there is no existing way to make it happen. The Federal Circuit reasoned that there is no principled reason why the Veterans Court cannot rely on the All Writs Act to aggregate claims for veterans.
Veterans Judicial Review Act of 1988
Congress created the Veterans Court as part of The Veterans Judicial Review Act (VJRA) of 1988. Before the Veterans Court was created, a veteran generally could not appeal his/her claim after the Board of Veterans Appeals made a final decision. The Federal Circuit noted that there was nothing in the Act that indicated the Veterans Court would not have the authority to maintain class actions.
Additionally, veterans succeeded in bringing class actions (for disability claims) against the government before the VJRA came into effect. For example, in Johnson v. Robinson, the Supreme Court reviewed a class action in which conscientious objectors challenged the federal regulations that barred them from receiving benefits. And in Nehmer v. U.S. Veterans’ Admin. Class certification was granted for a class of veterans exposed to Agent Orange during the Vietnam Era.
CAVC’s Inherent Powers
In 38 U.S. Code § 7264(a), Congress expressly gives the Veteran’s Court authority to create “rules of practice and procedure” needed to exercise jurisdiction. Other courts have relied on statutes with similar language to aggregate claims and create class action procedures, so the Federal Circuit concluded that the Veterans Court has authority to do the same.
Implications for the future
Class actions have the potential to shape VA policies that evade correction through the usual VA legal process. For example, a class action could be used to address the recent issue of termination of benefits for veteran caregivers through VA’s Caregiver Program. Caregiver claims are presently processed through the VA Medical Centers. Recently some of VA Medical Centers terminated these benefits for certain caregivers. VA maintains that the decision to terminate caregiver benefits is not appealable to the Board of Veterans Appeals like claims for compensation are. A veteran challenging that policy could be a good case for class action that would prompt the CAVC to determine whether these claims are appealable to the BVA and ultimately to the CAVC as well.