Veterans Affairs Court Embraces Class Actions

The United States Court of Appeals for Veterans Claims (the VA Court of Appeals), in Monk. V. Wilkie  No. 15-1280 (Vet. App., Aug. 23, 2018), ruled that veterans seeking benefits from the Department of Veterans Affairs may pursue class actions.  As one of the judges explained, “[t]his holding is a seismic shift in our precedent, departing from nearly 30 years of this Court’s case law.”


As background, a veteran applies for disability benefits at his or her regional VA office.  The regional office thereafter issues a decision, which the veteran may appeal to the Board of Veterans’ Appeals (Board) through the filing of a “notice of disagreement.”  On average, it takes the Board 5 ½ years to issue a decision following the filing of a notice of disagreement.  Once the Board issues a final decision, the veteran has a right to appeal the decision to the VA Court of Appeals, which is a tribunal part of the federal judiciary system and independent of the VA.  The VA Court of Appeals also entertains petitions from veterans for writs of mandamus, which are, in essence, requests to order a lower governmental office (in this case, the VA) to comply with its legal duties.

 In Monk, veterans argued that the Board’s systemic delay in resolving their appeals violated their due process rights under the U.S. Constitution, and petitioned the VA Court of Appeals for an order directing that the VA Board decide all cases within a year.  These veteran-petitioners sought to certify a class of all veterans who had filed timely notices of disagreement following a denial of benefits, and who were waiting one year or longer for a Board decision.    

In evaluating the petitioners’ class action, the VA Court of Appeals made the unprecedented step of holding that it would look to Rule 23 of the Federal Rules of Civil Procedure (the rule governing class actions) for guidance.  Consistent with prior precedent, the Court could have reasoned that Congress had limited its jurisdiction to hear only individual cases concerning veteran claims and had not expressly authorized class actions.  The Court, however, chose a different path and adopted Rule 23, greenlighting class actions against the VA.

The Court then evaluated whether a class action was appropriate in the case before it.  The Court observed that under Rule 23(a)(2), the party seeking class certification must prove that “[t]here are questions of law or fact common to the class.”  The Court held that the petitioners failed to demonstrate commonality because there may be a good reason why some veteran appeals would last over a year.  As explained in a concurrence, “[s]ome stages [of the appeal]—particularly those involving only administrative or ministerial tasks—may indeed produce unlawful delays. On the other hand, some stages will inherently take time to complete.  For example, a veteran might submit evidence that triggers VA’s duty to provide a medical examination, or a case might require VA to submit inquiries to the National Archives and the Department of Defense.” Thus, “the amount of time it takes to properly develop an appeal will necessarily vary case by case.”  Accordingly, there was no “common question” regarding the cause of each class member’s delay answerable in a way that could resolve an issue central to the validity of each individual due process claim.  The Court accordingly denied class certification.

There are a few points to be made:

First, it is clear that the Court’s newfound receptivity to class actions stems from its frustration with the VA’s widespread delay.  One judge characterized the nearly six-year average wait time for a Board decision to be “unconscionable.”  Another judge called the delay “staggering” and analogized it to a Charles Dickens novel.   More generally, it cannot be ignored that too many veterans face significant hurdles as they return to civilian life, and that our government—and all of us, frankly—could do more to ensure that they receive the benefits they deserve.  As one judge put it, “in theory, the political branches of our government are better positioned than are the courts to design the procedures necessary to save veterans’ lives and to fulfill our country’s obligation to care for those who have protected us. But that is only so if those governmental institutions are willing to do their job.”  Given this backdrop, it is no surprise that the Court has now embraced class actions as “a means to address systemic problems in the VA system.”  Cynical observers would call this judicial activism.  A more generous interpretation is that the Court is simply stepping in to rectify a problem other institutions have failed to address.   

Second, the fact that VA Court of Appeals ultimately denied class certification underscores the importance, in certain cases, of proposing a class definition that is narrow, even if that has the effect of limiting the relief ultimately available.  Here, the petitioners sought to certify a class including all veterans whose wait time exceeded a year.  However, as the Court held, not every yearlong wait will automatically violate due process.  But, what if the petitioners proposed a class of veterans waiting more than five years?  As mentioned above, the Court has already indicated that this sort of delay is “staggering” and “unconscionable.”  Had the petitioners proposed such a class, the Court might have been more receptive to finding a “common question” answerable in a manner that would resolve each class member’s due process claim.  As the Court hinted, “[t]here may very well be portions of [the VA] process that are ripe for aggregate remedies.”  The rub, however, is that such a “five-year” class would include many fewer veterans.  For that reason, one obviously cannot fault the petitioners for pursuing a litigation strategy that could affect the largest number of veterans.  The Court’s decision, however, implies that more modestly defined classes have a better shot at success.   

Third, veterans’ benefit requests sometimes raise common issues of causation with respect to the relationship between military service and a disability.  For example, many veterans may allege that they were exposed to the same toxic chemical, during the same period of time, in the same location.  Such claims of exposure would obviously be well-suited for class action treatment.  That the VA Court of Appeals has now allowed itself to make rulings with class-wide consequences may ultimately relieve the VA bureaucracy of resolving aspects of certain claims individually, which could streamline and improve service overall.

In sum, veterans’ advocates—and their lawyers—should be delighted by the Court’s decision, and are likely parsing every word therein with an eye towards their next big case.