Veteranclaims’s Blog

May 3, 2017

Monk v. Shulkin, No. 2015-7092, 2015-7106(Decided: April 26, 2017); Class Action Claims; Aggregating Claims;

Excerpt from decision below:

“CONCLUSION
We hold that the Veterans Court has the authority to establish a class action mechanism or other method of aggregating claims. We reverse the Veterans Court’s contrary decision and remand for the Veterans Court to determine whether a class action or other method of aggregation would be appropriate here.
REVERSED AND REMANDED”

===================

United States Court of Appeals for the Federal Circuit
______________________
CONLEY F. MONK, JR.,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS
Respondent-Appellee
______________________
2015-7092, 2015-7106
______________________
Appeals from the United States Court of Appeals for
Veterans Claims in No. 15-1280, Judge Lawrence B.
Hagel.
______________________
Decided: April 26, 2017
______________________
JOHN GIAMMATTEO, LIANG SHU, Jerome N. Frank Legal
Services Organization, New Haven, CT, argued for claimant-appellant. Also represented by MICHAEL JOEL WISHNIE, MARIO GAZZOLA, JASON PARKIN, JESSICA PURCELL.
AGATHA KOPROWSKI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY; BRIAN D. GRIFFIN,
2 MONK v. SHULKIN
AMANDA BLACKMON, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
JONATHAN FREIMAN, Wiggin and Dana LLP, New Haven,
CT, for amici curiae William Gunn, Mary Lou Keener.
Also represented by LORA JOHNS.
BARTON F. STICHMAN, National Veterans Legal Services
Program, Washington, DC, for amici curiae The
National Veterans Legal Services Program, Veterans Law
Institute, The American Legion, The Military Order of the
Purple Heart, Iraq and Afghanistan Veterans of America,
Vietnam Veterans of America, Hispanic American Veterans
of Connecticut.
JASON L. LICHTMAN, Lieff Cabraser Heimann & Bernstein,
LLP, New York, NY, for amici curiae Administrative
Law Professors, Complex Litigation Law Professors.
Also represented by JONATHAN D. SELBIN.
______________________
Before NEWMAN, DYK, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
This appeal concerns whether the United States
Court of Appeals for Veterans Claims has authority to
certify a class for class action or for similar aggregate
resolution procedures. Conley F. Monk, Jr., petitioned the
Veterans Court to certify a class action and to otherwise
aggregate for adjudication the claims of thousands of
veterans whose claims were similarly situated to his own.
The Veterans Court denied the request on grounds that it
lacks authority to certify classes of claims, or to adjudicate
disability claims on an aggregate basis. We hold that
the Veterans Court has the authority to certify a class for
a class action and to maintain similar aggregate resolution
procedures. We reverse the judgment of the Veterans
MONK v. SHULKIN 3
Court and remand for further proceedings consistent with
this opinion.
BACKGROUND
Mr. Monk served in the Marine Corps during the Vietnam
War. In February 2012, Mr. Monk filed a claim for
disability benefits with the Department of Veterans
Affairs (“VA”) Regional Office in Hartford, Connecticut.
His claim stems from what he alleges are serviceconnected
post-traumatic stress disorder, diabetes, hypertension,
and strokes. In early 2013, the VA notified
Mr. Monk that his claim had been denied because his
Marine Corps discharge was “other than honorable.” J.A.
138.
Mr. Monk challenged the VA decision by filing with
the VA a Notice of Disagreement (“NOD”) and requesting
a hearing before a decision review officer.1 Separately,
Mr. Monk applied to the Board of Correction of Naval
Records (“BCNR”) to upgrade his discharge status.
In February 2014, the regional office held the requested
hearing. In March 2015, the VA informed
Mr. Monk that it could not process his appeal until it
received records from the BCNR regarding his discharge
status.
On April 6, 2015, Mr. Monk filed a petition for a writ
of mandamus with the United States Court of Appeals for
Veterans Claims (“Veterans Court”). He requested the
Veterans Court to order the Secretary of Veterans Affairs
1 The appeal process at the VA begins with the veteran
filing a notice of disagreement. J.A. 71. The regional
office must then issue a Statement of the Case. Id.
The veteran may seek a hearing with a decision review
officer, after which the veteran may seek review by the
Board of Veterans’ Appeals (“Board”). Id.
4 MONK v. SHULKIN
(“Secretary”) to promptly adjudicate both his disability
benefits application and the applications of similarly
situated veterans. Mr. Monk also requested that the
Veterans Court certify a class under a class action or
similar aggregate resolution procedure. He proposed that
a class be formed of all veterans who had applied for VA
benefits, had timely filed an NOD, had not received a
decision within twelve months, and had demonstrated
medical or financial hardship as defined by 38 U.S.C.
§§ 7107(a)(2)(B)–(C). Mr. Monk proposed that members of
the class include veterans in all stages of the VA appeals
process that otherwise met these requirements, from
those awaiting a Statement of the Case to those awaiting
Board adjudication. J.A. 18, ¶ 43.
Mr. Monk further alleged that members of the proposed
class shared questions of law and fact, including
whether the VA’s delay in rendering decisions on disability
benefits claims violated the veterans’ due process
rights. On April 9, 2015, another veteran, Harold William
Van Allen, filed a motion to join Mr. Monk’s petition as a
class member.
On May 8, 2015, the Veterans Court issued a nondispositive
order both denying Mr. Monk’s request for
class certification and ordering the Secretary to respond
to the part of Mr. Monk’s petition regarding his appeal of
the VA’s denial of his personal claim for disability benefits.
On May 27, 2015, in order to permit Mr. Monk to immediately
appeal the class certification denial, the Veterans
Court replaced the non-dispositive order with a
dispositive order denying class certification and a nondispositive
order requiring the Secretary to respond to
Mr. Monk’s individual mandamus petition. In the same
order, the Veterans Court denied Mr. Van Allen’s motion
to join Mr. Monk’s proposed class.
MONK v. SHULKIN 5
In May 2015, the BCNR granted Mr. Monk’s application
for an upgraded discharge status which resulted in
an honorable discharge status for Mr. Monk. In July
2015, the Veterans Court issued an order denying
Mr. Monk’s individual petition for mandamus relief. It
found that the VA’s delay in adjudicating Mr. Monk’s
disability claim resulted, at least in part, from the VA’s
need for certain BCNR records.
The Veterans Court also rejected Mr. Monk’s request
for a class action or other aggregate relief on grounds that
it lacks authority to maintain class actions. The Veterans
Court stated that “Mr. Monk fails to appreciate the [Veterans]
Court’s long-standing declaration that it does not
have the authority to entertain class actions.” J.A. 3. The
Veterans Court concluded that “[i]n the absence of such
authority, no other arguments matter.” J.A. 4.
On May 27, 2015, and July 10, 2015, Mr. Monk filed
two timely appeals before this court, one challenging the
Veterans Court’s decision to deny his individual disability
claim and the other to appeal the Veterans Court decision
denying his request for a class action. Though separate
appeals, the class certification appeal (No. 15-7092) was
consolidated with the individual petition appeal (No. 15-
7106).
After Mr. Monk appealed to this court, the Secretary
determined that Mr. Monk was eligible for full disability
benefits for his service-connected post-traumatic stress
disorder and diabetes. On or after November 19, 2015,
Mr. Monk filed before the VA administration a new NOD
arguing that the Secretary erred in determining the
effective date for his individual disability benefits. The
action concerning this NOD remained pending as of the
date of oral argument in this case.
6 MONK v. SHULKIN
JURISDICTION
We first review as a preliminary issue the Secretary’s
assertion that we lack jurisdiction over this appeal. Our
jurisdiction over appeals of decisions of the Veterans
Court is limited. We may only review Veterans Court
decisions with respect to the validity of a decision of the
Veterans Court on a rule of law or of any statute or regulation
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the
Veterans Court in making the decision. 38 U.S.C.
§ 7292(c). This appeal raises a question of legal interpretation
that is clearly within our jurisdiction. Cox v. West,
149 F.3d 1360, 1362 (Fed. Cir. 1998). We review the
Veterans Court’s interpretations of statutes de novo.
Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir.
2007).
The Secretary asserts that this court lacks jurisdiction
because Mr. Monk’s appeal has been rendered moot.
As noted above, after Mr. Monk filed his appeals, the VA
awarded Mr. Monk a one hundred percent (100%) disability
rating, the highest rating possible. The Secretary
argues that because the disability benefits award resolved
Mr. Monk’s claim, there exists no justiciable controversy.
Article III of the Constitution limits our jurisdiction to
cases and controversies. U.S. CONST. art. III, § 2. The
case-or-controversy requirement ensures that federal
court adjudication is limited to actual and concrete disputes,
the resolutions of which have a direct consequence
on the parties. Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 669 (2016); U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 395–96 (1980); Caraco Pharm. Labs., Ltd. v.
Forest Labs., Inc., 527 F.3d 1278, 1290–91 (Fed. Cir.
2008).
A case is said to lack an actual or concrete dispute
where the relief sought by a plaintiff is satisfied or otherwise
rendered moot. See DeFunis v. Odegaard, 416 U.S.
MONK v. SHULKIN 7
312, 317 (1974) (“The controversy between the parties has
thus clearly ceased to be ‘definite and concrete’ and no
longer ‘touch(es) the legal relations of parties having
adverse legal interests.’”) (quoting Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240–41 (1937)). A case is moot
when it no longer presents live issues or “the parties lack
a legally cognizable interest in the outcome.” Powell
v. McCormack, 395 U.S. 486, 496 (1969).
The Secretary argues that once Mr. Monk obtained
full relief, he no longer possessed a legally cognizable
interest in the outcome of the appeal. We agree that
Mr. Monk’s appeal concerning his individual disability
claim is rendered moot.2 We disagree, however, that
Mr. Monk’s appeal of the Veterans Court decision on class
certification is also moot.
The issue of mootness in the context of class actions
has a long history. In particular, significant litigation has
focused on whether a class action suit can be maintained
by a class representative whose own substantive claim
has been satisfied. See, e.g., Geraghty, 445 U.S. at 404;
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338
(1980); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975);
Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1974); Dunn v.
Blumstein, 405 U.S. 330, 333 n.2 (1972).
The Supreme Court addressed this precise issue in
Geraghty, holding that a class action “does not become
moot upon expiration of the named plaintiff’s substantive
claim, even though class certification has been denied.”
Geraghty, 445 U.S. at 404. This decision is applicable to
this case because, as in Geraghty, Mr. Monk’s individual
2 This is not to say that Mr. Monk’s NOD claim before
the VA administration concerning the effective date
of the disability is moot.
8 MONK v. SHULKIN
substantive claim was satisfied after the Veterans Court
denied the request for class certification to form a class.
In Geraghty, the Court reasoned “the Federal Rules of
Civil Procedure give the proposed class representative the
right to have a class certified.” Id. at 403. The Court
explained that the purpose of the personal stake requirement
in the class action context is to assure that the case
is in a form capable of judicial resolution. Id. Here, the
question on appeal is the Veterans Court decision that it
did “not have the authority to entertain class actions” and
that in “the absence of such authority, no other arguments
matter.” J.A. 3–4. This question exists independent
of Mr. Monk’s disability award and it persists in the
context of the appeal raised by Mr. Monk. It is a question
presented “in a form fairly capable of judicial resolution.”
Geraghty, 445 U.S. at 403.
The Secretary argues that Geraghty is inapposite because
there, the personal stake in obtaining class certification
was derived from Federal Rule of Civil Procedure
23, which does not apply in the Veterans Court. In support,
the Secretary cites Genesis Healthcare Corp. v.
Symczyk, 133 S. Ct. 1523, 1530 (2013). In Genesis, the
Supreme Court found that a plaintiff’s class certification
request under the Fair Labor Standards Act, where Rule
23 did not apply, was rendered moot once the plaintiff’s
individual claim was mooted. Id. The Court reasoned
that “essential to our decisions in Sosna and Geraghty
was the fact that a putative class acquires an independent
legal status once it is certified under Rule 23.” Id. at
1530. The Secretary reasons that since Rule 23 does not
apply in Veterans Court, once Mr. Monk’s individual
claim was mooted, the potential for any independent legal
status for the purported putative class was eliminated.
Genesis is distinguishable on an important factor.
The primary reason the Court declined to extend
Geraghty was because the Genesis plaintiff’s claim was
MONK v. SHULKIN 9
mooted before any decision on class certification was
rendered: “Here, respondent had not yet moved for ‘conditional
certification’ when her claim became moot, nor had
the District Court anticipatorily ruled on any such request.
Her claim instead became moot prior to these
events, foreclosing any recourse to Geraghty.” Id. at 1530.
Here, as in Geraghty, Mr. Monk’s claim became moot after
class certification was sought and denied. This is also a
situation in which Mr. Van Allen moved to join
Mr. Monk’s proposed class (and was denied by the Veterans
Court), unlike in Genesis where no other individuals
had joined the class. 133 S. Ct. at 1527.
In any event, even if Geraghty were viewed as limited
only to situations where Rule 23 is applicable, Genesis
itself recognized that in cases such as this, where the
relief sought is forward-looking, a claim is not moot if it is
capable of repetition and yet evades review. A “classaction
claim is not necessarily moot upon the termination
of the named plaintiff’s claim” in circumstances in which
“other persons similarly situated will continue to be
subject to the challenged conduct,” but “the challenged
conduct was effectively unreviewable, because no plaintiff
possessed a personal stake in the suit long enough for
litigation to run its course.” Id. at 1530–31 (internal
quotations omitted). Data presented to the court indicate
that veterans face, on average, about four years of delay
between filing an NOD and receiving a final Board decision.
According to the Board’s Annual Report Fiscal Year
2014, veterans who filed an NOD waited an average of
330 days before receiving a Statement of the Case. Veterans
then waited an average of 681 days for the VA to
certify appeals to the Board, and then an average of 357
days for the Board to decide their appeals. Thousands of
veterans seeking benefits are still awaiting results of
their appeals. Indeed, Mr. Monk himself has filed another
NOD challenging the effective date of his disability
benefits, and will likely be subject to the same average
10 MONK v. SHULKIN
delay. On these facts, it would appear that the case is not
moot because it is “capable of repetition, yet evad[es]
review.” Geraghty, 445 U.S. at 398 (“[W]here the named
plaintiff does have a personal stake at the outset of the
lawsuit, and where the claim may arise again with respect
to that plaintiff; the litigation then may continue
notwithstanding the named plaintiff’s current lack of a
personal stake.”) (citations omitted).
VETERANS COURT’S AUTHORITY
The Secretary concedes that the Veterans Court has
authority to certify a class for class action or similar
aggregate resolution procedure. Oral Arg. at 14:40–20:19;
22:58–23:07, http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=2015-7092.mp3. Indeed, the Secretary did
not argue that the Veterans Court lacks authority to
aggregate claims, but rather, that the Veterans Court
merely decided that aggregation was not appropriate in
this instance. See, e.g., Resp. Br. 19–22; 33–35. But the
Veterans Court in unquestionable terms held that it
lacked authority to entertain class actions and that in
“the absence of such authority, no other arguments matter.”
J.A. 3 (emphasis added). As reviewed below, we
conclude that the Veteran’s Court decision that it lacks
authority to certify and adjudicate class action cases was
an abuse of discretion. We hold that the Veterans Court
has such authority under the All Writs Act, other statutory
authority, and the Veterans Court’s inherent powers.
1. The All Writs Act
The All Writs Act, 28 U.S.C. § 1651(a), provides that
“[t]he Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.”
Under the All Writs Act, the authority of the Veterans
Court “is not confined to the issuance of writs in aid of a
MONK v. SHULKIN 11
jurisdiction already acquired by appeal but extends to
those cases which are within its appellate jurisdiction
although no appeal has been perfected.” Roche v. Evaporated
Milk Ass’n, 319 U.S. 21, 25 (1943). The All Writs
Act is a “legislatively approved source of procedural
instruments designed to achieve ‘the rational ends of
law.’” United States v. N.Y. Tel. Co., 434 U.S. 159, 172
(1977) (quoting Harris v. Nelson, 394 U.S. 286, 299
(1969)). It permits federal courts to fill gaps in their
judicial power where those gaps would thwart the otherwise
proper exercise of their jurisdiction. Pa. Bureau of
Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41 (1985).
The All Writs Act unquestionably applies in the Veterans
Court. Cox, 149 F.3d at 1363. In Cox, we held that
the Veterans Court has the power to issue writs in aid of
its jurisdiction under the All Writs Act, such as ordering
the Board to issue a final determination in a case where it
had not already done so. Id. We see no limitation in the
All Writs Act precluding it from forming the authoritative
basis to entertain a class action.
Indeed, the All Writs Act has provided authority to
aggregate cases in various contexts. For example, in
United States ex rel. Sero v. Preiser, the Second Circuit
found that a district court properly maintained a class
action under the All Writs Act. 506 F.2d 1115, 1125–26
(2d Cir. 1974). The district court aggregated claims under
the All Writs Act, as opposed to Federal Rule of Civil
Procedure 23, because the case involved habeas proceedings
where Rule 23 did not apply. Id. The Second Circuit
explained that the All Writs Act permits courts to create
“appropriate modes of procedure, by analogy to existing
rules or otherwise in conformity with judicial usage.” Id.
at 1125 (quoting Harris, 394 U.S. at 299).
The Second Circuit found that creating a class action
procedure was appropriate for a number of reasons. Id. at
1125–27. The court explained that although Rule 23 did
12 MONK v. SHULKIN
not apply, the standards for determining whether a Rule
23 class action was appropriate provided support for
maintaining a class action. Id. at 1126–27. Specifically,
the court found that the class was so numerous that
joinder of all members was impracticable, that common
questions of law or fact existed, that the claims of the
representative parties were typical for the class, and that
the representative parties would fairly and adequately
protect the interests of the class. Id.; see FED. R. CIV. P.
23.
Here, the Veterans Court’s jurisdiction extends to
“compel action of the Secretary unlawfully withheld or
unreasonably delayed.” 38 U.S.C. § 7261(a)(2). We see no
principled reason why the Veterans Court cannot rely on
the All Writs Act to aggregate claims in aid of that jurisdiction.
2. Other Statutory Authority
In addition to the All Writs Act, other statutory authority
provides the Veterans Court the authority to
aggregate claims for class actions. Congress created the
Veterans Court as part of the Veterans Judicial Review
Act (“VJRA”). Pub. L. 100-687, Div. A, Title III, § 301(a),
Nov. 18, 1988, 102 Stat. 4113, §§ 4052, 4061, and 4066.
Before the VJRA, “a veteran whose claim was rejected by
the VA was generally unable to obtain further review.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
432 (2011) (citing 38 U.S.C. § 211(a) (1988)). Congress
enacted the VJRA to vest the newly created Veterans
Court with authority to review Board decisions adverse to
veterans. Id. There is no indication that Congress intended
such review authority to not include class actions.
Before the VJRA, veterans seeking to enforce veterans
benefit statutes were able to file class actions in some
circumstances. For example, in Johnson v. Robison, 415
U.S. 361 (1974), the Supreme Court exerted its authority
to review a class action in which conscientious objectors
MONK v. SHULKIN 13
who performed mandatory alternative civil service challenged
the veterans benefits statutory provisions excluding
them as beneficiaries. See also Wayne State Univ. v.
Cleland, 590 F.2d 627, 628 n.1 (6th Cir. 1978) (reviewing
a class action suit brought on behalf of all veterans enrolled
in college education program); Nehmer v. U.S.
Veterans’ Admin., 118 F.R.D. 113 (N.D. Cal. 1987) (granting
motion for class certification for class of veterans
exposed to certain chemicals); Giusti-Bravo v. U.S. Veterans
Admin., 853 F. Supp. 34 (D.P.R. 1993) (putative class
action including veterans with benefits related to mental
disorders).
Under 38 U.S.C. § 7264(a), “[t]he proceedings of the
[Veterans Court] shall be conducted in accordance with
such rules of practice and procedure as the Court prescribes.”
This express grant authorizes the Veterans
Court to create the procedures it needs to exercise its
jurisdiction.
Other tribunals have relied on statutes with similar
language as 38 U.S.C. § 7264 to aggregate claims and
create class action procedures, including the Equal Employment
Opportunity Commission (“EEOC”). See Amicus
Br. of 15 Admin. Law, Civil Procedure, and Fed.
Courts Professors at 10–11 (noting that the EEOC was
granted authority to “issue such rules, regulations, orders
and instructions as it deems necessary and appropriate to
carry out its responsibilities” pursuant to 42 U.S.C.
§ 2000e-16(b)). Under this authority, the EEOC adopted
a class action resolution procedure. 29 C.F.R. § 1614.204;
see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v.
Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13
(E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C.
§ 2000e-16(b)] authority, the EEOC has promulgated
regulations for class actions.”).
On the basis of the express statutory authority of the
Veterans Court to prescribe “rules of practice and proce14
MONK v. SHULKIN
dure,” the Veterans Court may prescribe procedures for
class actions or other methods of aggregation.
3. Absence of Statutory Restriction
The Veterans Court relies on Harrison v. Derwinski, 1
Vet. App. 438 (1991) (en banc), to conclude that it lacks
authority to entertain class actions. J.A. 3. The Harrison
court relied on three statutory provisions to conclude it
lacked class action authority. 1 Vet. App. at 438. It first
noted that 38 U.S.C. § 7252 “limits the jurisdiction of this
Court to the review of [Board] decisions.” Id. Next, 38
U.S.C. § 7261(c) states that “[i]n no event shall findings of
fact made by the Secretary or the Board of Veterans’
Appeals be subject to trial de novo by the Court.”3 38
U.S.C. § 7261(c). Finally, under 38 U.S.C. § 7266, “each
person adversely affected by such a [Board] decision must
file a notice of appeal.” 1 Vet. App. at 438. Thus the
Harrison decision reflects a concern that the Veterans
Court would exceed its jurisdiction if, for example, it
certified a class that included veterans that had not yet
received a Board decision or had not yet filed a notice
appealing a Board decision. The Veterans Court adopted
this reasoning and further recognized that the Veterans
Court has “previously declined to permit class actions
because to do so would be unmanageable and unnecessary.”
J.A. 3.
We disagree that the Veterans Court’s authority is so
limited. Congress expressly gave the Veterans Court the
authority to “compel action of the Secretary unlawfully
3 The provision codified at 38 U.S.C. § 7261 was
formerly codified at 38 U.S.C. § 4061. This provision
remains unchanged since the court in Harrison cited it,
except that in place of “Administrator,” the provision now
states “Secretary.” 38 U.S.C. § 4061(c) (1988).
MONK v. SHULKIN 15
withheld or unreasonably delayed.” 38 U.S.C.
§ 7261(a)(2). While there was legislative history that the
focus should be on individual claimants, see Am. Legion v.
Nicholson, 21 Vet. App. 1, 4–5 (2007), we find no persuasive
indication that Congress intended to remove class
action protection for veterans when it enacted the VJRA.4
Rather, Congress gave the Veterans Court express authority
to prescribe rules of practice and procedure for its
proceedings.
Class actions can help the Veterans Court exercise
that authority by promoting efficiency, consistency, and
fairness, and improving access to legal and expert assistance
by parties with limited resources. In Young v.
Shinseki, 25 Vet. App. 201, 215 (2012), Judges Lance and
Hagel explained that the VA’s delay in adjudicating
appeals evades review because the VA usually acts
promptly to resolve mandamus petitions. 25 Vet. App. at
215; see note 3, supra. They stated that when the Veterans
Court orders the VA to respond to a petition “set[ting]
forth a well-pleaded complaint that the processing of a
claim has been improperly delayed,” the “great majority of
the time” the VA “responds by correcting the problem
within the short time allotted for a response, and the
petition is dismissed as moot because the relief sought
has been obtained.” Id. Case law is replete with such
4 A Congressional Budget Office cost estimate released
shortly before the VJRA was enacted suggests that
Congress intended that the Veterans Court would have
the authority to maintain class actions. H.R. Rep. No.
100-963, pt. 1, at 41–42 (1988) (discussing potential
litigation challenges to VA regulations, stating, “Again
according to SSA, most challenges to regulations are class
actions, involving large groups of beneficiaries or potential
beneficiaries.”).
16 MONK v. SHULKIN
examples.5 Thus a claim aggregation procedure may help
the Veterans Court achieve the goal of reviewing the VA’s
delay in adjudicating appeals.
Class actions may help the Veterans Court consistently
adjudicate cases by increasing its prospects for precedential
opinions. The Veterans Court issues only a small
number of precedential opinions each year. See Amicus
Brief of Former General Counsels of the VA at 7.6 Permitting
class actions would help prevent the VA from
mooting claims scheduled for precedential review. See
Amicus Brief of American Legion at 18–25 (providing two
examples of instances where the VA offered full benefits
to a veteran whose case was scheduled for precedential
5 See, e.g., Seller v. McDonald, No. 16-2768, 2016
WL 5828055, at *2 (Vet. App. Sept. 30, 2016) (withdrawing
a petition for a writ of mandamus compelling the VA
to adjudicate an appeal because the VA adjudicated the
appeal at an unspecified time within a month and a half
of the petition’s filing); Dotson v. McDonald, No. 16-2813,
2016 WL 5335437, at *1 (Vet. App. Sept. 23, 2016) (dismissing
as moot a petition for a writ of mandamus compelling
the VA to adjudicate an appeal because the VA
adjudicated the appeal seven days after the petition was
filed); Dalpiaz v. McDonald, No. 16-2602, 2016 WL
4702423, at *1 (Vet. App. Sept. 8, 2016) (dismissing as
moot a petition for a writ of mandamus compelling the VA
to adjudicate an appeal because the VA adjudicated the
appeal at an unspecified time within about a month of the
petition’s filing).
6 In 2014, the Veterans Court decided 1,615 appeals
in single-judge non-precedential decisions, and only 35
appeals were decided by a precedential multi-judge panel
or the full court.
MONK v. SHULKIN 17
review, while denying other veterans benefits on the same
grounds).
In addition, a class action rule would permit the Veterans
Court “to serve as lawgiver and error corrector
simultaneously, while also reducing the delays associated
with individual appeals.” Michael P. Allen, Significant
Developments in Veterans Law (2004-2006) and What
They Reveal About the U.S. Court of Appeals for Veterans
Claims and the U.S. Court of Appeals for the Federal
Circuit, 40 U. Mich. J.L. Reform 483, 521 n.231 (2007).
Similarly, class action suits could be used to compel
correction of systemic error and to ensure that like veterans
are treated alike. Lawrence B. Hagel & Michael P.
Horan, Five Years Under the Veterans’ Judicial Review
Act: The VA Is Brought Kicking and Screaming into the
World of Meaningful Due Process, 46 Me. L. Rev. 43, 65
(1994).
We see no reason why the Veterans Court cannot use
class actions to promote efficiency, consistency, and
fairness in its decisions. The Veterans Court is no different
in this respect from, for example, the EEOC or bankruptcy
courts that have adopted class action mechanisms
to promote similar concerns.
Accordingly, we determine that the Veterans Court
has authority to certify a class for class action or similar
aggregate resolution procedure.7 We decline to address
7 In a non-precedential opinion, this court had previously
agreed with the Veterans Court that it lacked the
authority to establish a class action procedure. Spain v.
Principi, 18 F. App’x 784, 786 (Fed. Cir. 2001) (“We agree
that the Veterans Court did not have the authority to . . .
establish class action procedures . . . .”). More recently,
this court stated, in another non-precedential opinion,
that the Veterans Court’s position on this issue was “at a
18 MONK v. SHULKIN
whether certification of a class would be appropriate here,
or the nature of procedures that the Veterans Court may
establish for such actions.
CONCLUSION
We hold that the Veterans Court has the authority to establish a class action mechanism or other method of aggregating claims. We reverse the Veterans Court’s contrary decision and remand for the Veterans Court to determine whether a class action or other method of aggregation would be appropriate here.
REVERSED AND REMANDED
COSTS
Costs to Mr. Monk.
minimum, not clearly incorrect.” Adeyi v. McDonald, 606
F. App’x 1002, 1004 (Fed. Cir. 2015). To the extent these
prior non-precedential rulings diverge from our holding
today, any perceived conflict is superseded by today’s
precedential authority.

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