This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Military Law

Apr. 8, 2021

Class actions arrive at the VA

Wanna bet which proves more effective in speeding up justice for veterans… more government regulations or class action lawyers?

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

Until recently, the ability to file a class action against the Department of Veterans Affairs wasn't recognized. In 2017, the U.S. Court of Appeals for the Federal Circuit held that the Court of Appeals for Veterans Claims has jurisdiction to certify and adjudicate class actions; it also held that the CAVC could create its own class action rules. A few months ago, the CAVC set forth its first ever class action rules that provide the mechanism for class actions by veterans who were denied benefits by the VA.

Class actions came to the CAVC just as the word on the street was that the VA was engaging in a sort of catch-and-kill dynamic that prevented the development of the law. That is, a veteran would go through all of the VA's lengthy internal processes, then wait in line for a few more years to come onto the CAVC calendar. Shortly before the matter was to be heard, the VA would settle the case, dooming the prospect of the CAVC setting precedent.

A Brief History

From the Revolutionary War until 1988, there was no judicial recourse for veterans who were denied benefits. The VA operated a closed shop, so a veteran denied benefits was shuffled from one part of the VA to another. But in 1988, Congress created a new court when it enacted the Veterans Judicial Review Act, Pub. L. No. 100-687. The legislative history for the act states that the VA stands in "splendid isolation as the single federal administrative agency whose major functions are explicitly insulated from judicial review," H.R. Rep. 100-963. At first, the new court was named the United States Court of Veterans Appeals. In 1998, the court was renamed the United States Court of Appeals for Veterans Claims, CAVC.

The CAVC has exclusive jurisdiction to hear appeals of decisions from the Board of Veterans' Appeals, the highest level administrative tribunal within the VA. Under the All Writs Act, 28 U.S.C. Section 1651, the CAVC also has the authority to issue writs in aid of its prospective jurisdiction, so it is able to order the VA to perform certain acts such as providing a medical examination. In addition, it can award attorney fees under the Equal Access to Justice Act, Pub. L. No. 96-481.

Shortly after the new court was created, the CAVC stated in Harrison v. Derwinski, 1 Vet. App. 438, 438 (1991), that it "lacks the power to adopt a rule of the kind proposed for class actions." It also stated in the case that a class action would be highly unmanageable for CAVC to handle. (at p. 438.) Circumstances recently changed, however.

Monk v. Shulkin, 15-1280, concerned a Marine Corps Vietnam veteran who filed a VA claim for post-traumatic stress disorder in 2012. Three years later, the VA still had not rendered a decision. Monk filed a petition for extraordinary relief asking the CAVC to order the Secretary of Veterans Affairs to promptly adjudicate his claim. He also requested the CAVC to certify a class action so that other similarly situated veterans could also benefit from the decision. The CAVC chided Monk for failing to recognize its long-standing declaration that it did not have the authority to entertain class actions.

Not only didn't Monk recognize that CAVC lacked jurisdiction to adjudicate class actions, he asked the Federal Circuit to inform the CAVC it had such jurisdiction. In 2017, the Federal Circuit clarified that the CAVC has the authority to certify and hear class action cases. In Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), the Federal Circuit held that under the All Writs Act, its own enabling statutes and by virtue of its inherent powers, the CAVC has the ability to establish its own rules and procedures, and that includes certifying and adjudicating class actions. The CAVC acknowledged its authority to certify class actions against the VA in appropriate cases in Monk v. Wilkie, 30 Vet. App. 167 (2018).

Early CAVC Class Action Cases

Class action lawyers, representing veterans who had long been denied benefits by the VA, inundated the CAVC with requests to file class actions. Before long, the CAVC's website listed 84 class action filings, three of which the CAVC has certified to date.

In Godsey v. Wilkie, 31 Vet. App. 207 (2019), a group of veterans sued the VA to speed up its process. The CAVC certified a class as follows: "All VA benefits claimants who filed a Substantive Appeal at least 18 months or more prior to the date of this order and who are waiting for VA to initiate pre-certification review of their cases."

In the second certified class action, citing to one of its own regulations, the VA declined to reimburse veterans' non-VA emergency medical expenses. In Wolfe v. Wilkie, 32 Vet. App. 1 (2019), the CAVC appears to express frustration with the VA for misrepresenting to veterans that they were not entitled to reimbursement, and held that the VA's regulation stating otherwise, 38 C.F.R. Section 17.1005(a)(5), was invalid. The CAVC certified the class as: "All claimants whose claims for reimbursement of emergency medical expenses incurred at non-VA facilities VA has already denied or will deny, in whole or in part, on the ground that the expenses are part of the deductible or coinsurance payments for which the veteran was responsible."

The third case certified by the CAVC was Skaar v. Wilkie, 32 Vet. App. 156 (2019). In Skaar, the CAVC was requested to grant class certification in a case involving 1,400 members of the armed forces who were exposed to radiation when they were sent to clean up after an Air Force plane containing thermonuclear weapons collided with a refueling tanker. The certified class is defined as: "All U.S. veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain, and whose application for service-connected disability compensation based on exposure to ionizing radiation VA has denied or will deny by relying, at least in part, on the findings of dose estimates requested under 38 C.F.R. Section 3.311, except those whose claims have been denied and relevant appeal windows of those denials have expired, or those whose claims have been denied solely based on dose estimates obtained before 2001."

The New Rules

Rule 22 sets forth the timing for a class action request and that the filing fee is $400. It begins by stating that class action relief may be sought by "represented parties," apparently negating the possibility of self-represented litigants bringing class actions. The rule requires would-be class representatives to "explain the reasons why a decision granting relief on a class action basis would serve the interests of justice to a greater degree than would a precedential decision granting relief on a non-class action basis," and provides that notice of filed Requests for Class Certification and Class Action, RCA, will appear on the CAVC's website.

Rule 23 is based on Federal Rules of Civil Procedure, Rule 23. CAVC Rule 23 says the proposed class must be so numerous that consolidating individual actions is impracticable. There must be common questions of law or fact to the class. The legal issues of the representative parties must be typical of those raised by the class. A request must provide that the representative parties will fairly and adequately protect the interests of the class. Another requirement is that the VA has acted or failed to act on grounds that apply generally to the class so that final injunctive or other relief is appropriate respecting the class as a whole. Rule 23 requires the VA to either concede to the issue of numerosity or states its reasons for opposition as well as a statement of the actual or estimated number of putative class members, if feasible. If it's not feasible to state a number, the VA must explain why.

As to the role of class counsel, Rule 23 states class counsel is to act as lead counsel on all issues related to the class proceedings before the court. But the court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

Rule 15(e) provides that a potential intervenor in a class action shall submit a motion for permission to intervene. The motion shall contain a concise statement of the interest of the moving person or organization and the grounds upon which intervention is sought.

The new rules can be found on the CAVC's website.

Conclusion

The VA has long struggled to address system-wide delays, and has frustrated CAVC precedent by either settling years-old cases just before the CAVC issued a ruling or failing to implement holdings of the CAVC. As veterans who have been denied benefits, or denied due process in obtaining benefits, seek relief from the CAVC through class actions, good things could result: the years-long backlogs at the VA could decrease; the CAVC could set more precedential authority; and, best of all, veterans could get the benefits they earned. Let's hope that class actions against the VA will not result in just substituting delay within the VA to delay within the CAVC! 

#362186


Submit your own column for publication to Ben Armistead


For reprint rights or to order a copy of your photo:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

Send a letter to the editor:

Email: letters@dailyjournal.com