Veteranclaims’s Blog

August 24, 2018

Monk v. Wilkie, No. 15-1280(DATED: August 23, 2018); class certification;

Filed under: Uncategorized — Tags: , , — veteranclaims @ 10:10 pm

 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1280
CONLEY F. MONK, JR., ET AL., PETITIONERS,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before DAVIS, Chief Judge, and SCHOELEN, PIETSCH, BARTLEY, GREENBERG, ALLEN,
MEREDITH, and TOTH, Judges.1
O R D E R
Opinions En Banc
The motion for class certification is denied by an equally divided en banc Court. The opinions that follow reflect the views of the participating judges.

SCHOELEN, Judge, with whom DAVIS, Chief Judge, PIETSCH, and MEREDITH,
Judges, join concurring:

I. BACKGROUND
On April 6, 2015, Conley F. Monk, Jr., filed a petition with the Court for extraordinary
relief in the nature of a writ of mandamus. The petition sought an order from the Court directing the Secretary to decide certain appeals within 1 year after a Notice of Disagreement (NOD) was submitted. The petitioner filed the petition on behalf of himself and similarly situated persons facing financial and medical hardship. The petition alleged that the Secretary’s delay in adjudicating claims for disability compensation benefits, which are pending an administrative appeal before VA, constitutes a violation of the right to due process under the Fifth Amendment
to the U.S. Constitution. Additionally, the petition alleged that the Secretary’s delay in adjudicating disability compensation claims amounts to an arbitrary refusal to act. The petition requested that the Court grant relief to an aggregate group pursuant to the principles of Rule 23 of the Federal Rules of Civil Procedure (Rule 23). The Court interpreted this request as a motion for a class action.
1 Judge Falvey did not participate in this matter because it was assigned to the full-Court and oral argument was held before his appointment to the Court. See U.S. VET. APP. INTERNAL OP. P. sec. VII(b)(1)(B).
2
Regarding the request for class relief, the Court denied the petition on the ground that the Court did not have the authority to adjudicate class claims. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the decision and remanded the matter for further proceedings. Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017). The Court determined to consider the remanded matter en banc.

On January 12, 2018, the Court granted the petitioner’s “Amended Motion for Leave to File an Amended Petition for Extraordinary Equitable and Collective Relief and Join Additional Petitioners” (Amended Petition). The Amended Petition expands the proposed class by removing the condition that the proposed class be limited to veterans facing medical or financial hardship.
Additionally, the Amended Petition joins eight additional petitioners to this action.2 The petitioners have defined the proposed class as consisting of all individuals who applied for and have been denied VA disability compensation benefits and have not received a decision from the Board of Veterans’ Appeals (Board) within 12 months of the date of filing a timely NOD.3 Finally, the Amended Petition adds a new basis to support the argument that a writ of mandamus is necessary to correct the Secretary’s delay in adjudicating disability claims pending on appeal.
On March 5, 2018, the en banc Court held oral argument on the issue of class certification.
The Court will address this issue and will not make any findings on the underlying merits of the Amended Petition. The Court anticipates that, at some point, it will adopt a rule on aggregate procedures that is appropriate for this Court. However, until that time, the Court will use Rule 23 of the Federal Rules of Civil Procedure as a guide.
II. ANALYSIS
A. The Court’s Authority To Decide Aggregate Actions in Petitions for Writs of Mandamus
It is well settled that this Court has authority pursuant to the All Writs Act, 28 U.S.C.
§ 1651, to issue extraordinary relief in the form of a writ of mandamus. See Erspamer v. Derwinski, 1 Vet.App. 3, 7-8 (1990).4 Further, this Court has long since recognized that the Court’s jurisdiction under the All Writs Act “extends beyond pending cases; it embraces the prospective and potential jurisdiction” of those cases that are within its appellate jurisdiction although no appeal has been perfected. Id.; see Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943).
The Federal Circuit held that the All Writs Act also authorizes this Court to aggregate cases in the context of a petition for extraordinary relief in the form of a writ of mandamus. Monk, 855 F.3d at 1318.5 The Federal Circuit also recognized that other statutory provisions grant the
2 These petitioners are James Briggs, Tom Coyne, William Dolphin, Jimmie Hudson, Samuel Merrick, Lyle Obie, Stanley Stokes, and William Jerome Wood II.
3 At oral argument, the petitioners clarified that the decisions referred to in the petition and Amended Petition are Board decisions.
4 The Court does not address the Court’s authority to aggregate proceedings as part of its review of a final Board decision.
5 In Harrison v. Derwinski, the Court denied an appellant’s petition to establish class action procedures because (1) the Court lacked authority to adopt class action procedures; (2) class action procedures would be “highly unmanageable”; and (3) class actions are “unnecessary” because of the binding effect of the Court’s precedential
3
Court authority to aggregate claims, including 38 U.S.C. § 7264(a), which specifically provides the Court express authority to create rules and procedures it needs to exercise its jurisdiction, and 38 U.S.C. § 7261(a)(2), which expressly provides the Court the power to “compel action of the Secretary unlawfully withheld or unreasonably delayed.” Because Congress did not restrict section 7261(a)(2) to individual petitions, the Federal Circuit concluded that this Court may aggregate
petitions for extraordinary relief. Monk, 855 F.3d at 1320.
The Court has authority to conduct limited factfinding, for example, to determine whether to equitably toll the Court’s time limit to file a Notice of Appeal. See Dixon v. Shinseki, 741 F.3d 1367, 1377 (Fed. Cir. 2014) (“Because the period relevant to the equitable tolling inquiry occurs after the [B]oard has rendered a final decision . . . , the Veterans Court must frequently ‘seek facts outside the record before the Board’ in evaluating whether equitable tolling is warranted.” (quoting Bove v. Shinseki, 25 Vet.App. 136, 143 (2011) (per curiam order) (“[T]his Court . . . may seek facts outside the record before the Board and independently weigh the facts to determine if
equitable tolling is appropriate.”))), overruled on other grounds, Dixon v. McDonald, 815 F.3d 799 (Fed. Cir. 2016).6 When considering the merits of a petition for extraordinary relief, the Court has long considered facts that were not before the Board. See Erspamer, 1 Vet.App. at 10.
This Court also concludes that it has authority to conduct limited factfinding to determine whether class certification is warranted. An integral part of the Court’s exercise of its authority to issue writs on an aggregate basis includes the authority to conduct the limited factfinding needed to decide whether the petitioners and putative class members satisfy this Court’s requirements to certify a class and to further decide the merits of the underlying petition. Accordingly, limited
factfinding in the context of class certification in petitions for extraordinary relief does not run afoul of the prohibition of section 7261(c) that the Court shall not make de novo findings of fact when it reviews the merits of a final Board decision.

B. VA Claims Adjudication and Appeals Process
To fully address the certification issue, the Court begins by examining the VA claims
adjudication and appeals processes. The Veterans Benefits Administration (VBA) is the branch of VA that is responsible for operating various veterans benefits programs and services, including disability compensation. Under the disability compensation program, veterans with disabilities that are the result of a disease or injury incurred in, or aggravated during, active military service are entitled to monetary benefits as compensation. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2018).
decisions in pending and future cases. 1 Vet.App. 438, 438-39 (1991) (en banc order). In Monk, the Federal Circuit expressly overturned the first ground of Harrison, that is, the Federal Circuit disagreed that this Court lacks authority to adopt class action procedures. 855 F.3d at 1320 (citing Harrison, 1 Vet.App. at 438) (“We disagree that
the . . . Court’s authority is so limited.”). Here, given that the Court will deny the petitioners’ motion for class certification because, for reasons explained below, the proposed class does not meet Rule 23’s commonality standard, the Court need not at this time decide whether Harrison’s manageability and necessity grounds are appropriate considerations for class certification.
6 Additionally, this Court has authority to make factual findings over ancillary matters. See, e.g., Golden v. Gibson, 27 Vet.App. 1, 9 (2014) (determining whether an attorney fee agreement is “excessive or unreasonable” under 38 U.S.C. § 7263(d) (emphasis added)); Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011) (per curiam order)
(stating that the Court may make findings of fact in deciding whether holding a party in contempt is warranted).
4
Generally, to establish entitlement to service-connected disability compensation, “the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Once a disability is service connected, VA assigns a disability rating based on a schedule of ratings for specific injuries and disabilities. Generally, VA applies the criteria established in the pertinent diagnostic code in the disability rating schedule and assigns a disability rating for the service-connected injury or illness. Different mental and physical injuries and diseases are rated on a scale of 0 to 100%, in 10% increments. The disability ratings are based on the average diminished earning capacity attributed to the service-connected disease or injury.7
The VA regional office (RO) also assigns an effective date for the award of
service-connected disability benefits. Generally, the effective date of an original claim or a reopened claim is the date of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a). However, after a decision on a claim has become final within VA, a veteran may file a request for revision of the prior decision based on clear and unmistakable error (CUE). If the veteran establishes that there was CUE in the RO decision, then the RO decision will be revised, meaning that the request for revision may result in an earlier effective date. See Cook v. Principi,
318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 5109A. Additionally, a finally disallowed claim may be reopened based upon new and material evidence. 38 U.S.C. § 5108 (“If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.”).
Applying for benefits from the VBA begins at one of the 56 ROs located throughout the
United States. After receiving the claim, VA has a statutory duty to assist a veteran in developing
evidence in support of his or her claim. 38 U.S.C. § 5103A. The duty to assist requires VA to
undertake “reasonable efforts” to seek all government records that may pertain to the claim,
including service personnel and medical records, VA medical records, and Social Security
Administration records. 38 U.S.C. § 5103A(c). VA is required to attempt to obtain records from a
Federal department or agency until it is reasonably certain that the records do not exist or that any
further efforts to obtain the records would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R.
§ 3.159(c)(2) (2018). When the Secretary is unable to obtain the records sought, the Secretary is
required to notify the claimant.8 38 C.F.R. § 3.159(e)(1). The duty to assist also requires VA to
acquire non-Federal records, including private medical records that the claimant adequately
7 The percentage of a disability rating assigned to a veteran is “considered adequate to compensate for
considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades
of disability.” 38 C.F.R. § 4.1 (2018).
8 The notice provided must (1) identify the records that the Secretary was unable to obtain, (2) briefly describe
the efforts the Secretary made to obtain the records, and (3) describe any further action that the Secretary will take
with respect to the claim. 38 U.S.C. § 5103A(b)(2)(A). Furthermore, if the Secretary determines that continued
searching for service records would be futile, the Secretary is required to explain to the claimant how service records
are maintained, why the search that was undertaken constitutes a reasonably exhaustive search, and why further efforts
(e.g., inquiries directed to the named facilities, if they are still operational) are not justified. See Godwin v. Derwinski,
1 Vet.App. 419, 425 (1991).
5
identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); see 38 C.F.R. § 3.159(c)(1). For
private records, VA must make “an initial request for the records and, if the records are not
received, at least one follow-up request.” 38 C.F.R. § 3.159(c)(1). If VA determines that those
records are unavailable, VA must notify the claimant of their unavailability. 38 U.S.C.
§ 5103A(b)(2)(A).
Because many of the issues in adjudicating disability compensation claims involve medical
questions, VA’s duty to assist also includes “providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to make a decision on the
claim.” 38 U.S.C. § 5103A(d). In a service-connection claim, a medical examination may affirm
that a disability exists and include an opinion regarding the relationship of the current disability to
the veteran’s military service. In a rating-increase claim, a medical examination may describe the
nature and severity of the veteran’s service-connected disability.
Once evidence in support of a veteran’s claim has been gathered, the RO makes a decision
on the claim. If a veteran disagrees with the RO decision, he or she may appeal to the Board. An
appeal is a two-step process. The first step begins when a veteran files an NOD. An NOD may be
filed within 1 year after the RO’s decision is mailed. The veteran may appeal the denial of service
connection, the percentage of the disability rating assigned to the disability, or the effective date
of the disability.
After an RO receives an NOD from a veteran, it sends the veteran an election letter asking
the veteran to choose between two nonexclusive appeals processes: (1) De novo review of his or
her claim by a decision review officer (DRO) (a senior ratings specialist), who is authorized to
hold a hearing and reverse the initial rating decision; or (2) a traditional appeal to the Board. See
38 U.S.C. § 7105(d). If the veteran elects de novo review by a DRO, and that officer resolves
some, but not all issues on appeal, or if the officer fails to resolve the appeal, a Statement of the
Case (SOC) will be prepared providing a more detailed rationale for the underlying ratings
decision. If the veteran elects the traditional appeal, an SOC will be issued. VA’s duty to assist
continues throughout the appeals process, as VA is required to “take such development or review
action as it deems proper” to resolve the disagreement. 38 U.S.C. § 7105(d); see Prickett
v. Nicholson, 20 Vet.App. 370, 377 (2006) (stating that “[t]he VA adjudicatory system is designed
to afford both the claimant and the Government every opportunity to resolve a disagreement
between the parties”).
If the veteran chooses to continue to pursue an appeal to the Board, he or she proceeds to
the second step of the appeal process by filing a VA Form 9 within 60 days of receiving the RO’s
SOC, or within the remainder of the 1-year appeal period that begins when the veteran receives
the RO’s decision, whichever is later. See 38 U.S.C. § 7105(d)(3). After a VA Form 9 is filed, the
RO must then certify the veteran’s appeal to the Board. 38 C.F.R. § 19.35 (2018). Before the Board
makes a decision on a claim, the veteran is entitled to a hearing before the Board. 38 U.S.C.
§ 7107(b).9
9 This is a description of the existing VA adjudication and appeals process. Congress recently enacted the
Veterans Appeals Improvement and Modernization Act of 2017, 115 Pub. L. No. 55, 131 Stat. 1105 (Aug. 23, 2017),
which will modify this process. Because this modification is not yet in place, we do not comment on class actions
under the new statutory scheme.
6
C. Class Certification Under Rule 23
As stated above, in this case the Court will use Rule 23 of the Federal Rules of Civil
Procedure as a guide for considering whether to grant the petitioners’ motion for class certification.
Class relief is appropriate when the class shares issues that are common to the class as a whole and
when the questions of law apply in the same manner to each class member. Califano v. Yamasaki,
442 U.S. 682, 701 (1979). In such cases, “the class-action device saves the resources of both the
courts and the parties by permitting an issue potentially affecting every [class member] to be
litigated in an economical fashion.” Id.
Rule 23 governs class certification. To justify certification, each of the elements of Rule
23(a) must be met. See Amchem Products., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Richards v.
Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The party seeking class action bears the
burden of proving that the requirements of the class certification rule have been met. Amchem,
521 U.S. at 614; DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010).
The certifying court must rigorously analyze the Rule 23 prerequisites before certifying a
class. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). “Frequently that ‘rigorous
analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim [and this]
cannot be helped” because “‘[t]he class determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the . . . cause of action.'” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting Falcon, 457 U.S. at 160 (internal quotation marks
omitted)). The four prerequisites to certify a class action under Rule 23(a) are the following:
1. Numerosity: The class is so numerous that joinder of all members is
impracticable;
2. Commonality: There are questions of law or fact common to the class;
3. Typicality: The claims or defenses of the representative parties are typical of the
claims and defenses of the class; and
4. Adequacy: The representative parties will fairly and adequately protect the
interests of the class.
FED. R. CIV. P. 23(a). Additionally, the proponents of class certification must demonstrate that the
class is maintainable under one of the subdivisions of Rule 23(b). See Amchem, 521 U.S. at 614.
Here, the petitioners argue that the class should be certified pursuant to Rule 23(b)(2), which
requires that “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Petitioners’ Response to Court’s October 2017 Order
at 20 (Pet.’s Response).
D. Commonality
The crux of this case is commonality, Rule 23(a)’s requirement that there be questions of
law or fact common to the class as a whole. In Wal-Mart, 564 U.S. at 349-50, the U.S. Supreme
Court held that a proposed class must demonstrate that the class members suffer the same injury.
In proving this element, it is not sufficient that all class members suffer from a violation of the
7
same provision of law. Id. at 350. Rather, the certifying court must be convinced that the claims
of every class member “depend upon a common contention, . . . . that . . . is capable of classwide
resolution[, meaning that the contention is of such a nature] . . . that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Id.
Wal-Mart makes clear that class certification depends not only on common questions but
also on the capability of a class action proceeding to provide common answers to the class
members’ substantive claims that are likely to resolve the litigation. Id. In Wal-Mart, the
respondents sought to certify a class of female employees who alleged discrimination over pay
and promotion in violation of Title VII of the Civil Rights Act of 1964. The Supreme Court noted
that, in a Title VII suit involving an assertion of discriminatory bias, the principal substantive
inquiry is the reason for an employment decision. Id. at 352. In the class action suit – where
millions of discretionary employment decisions were at stake – the Supreme Court stated that,
“[w]ithout some glue holding the alleged reasons for all those decisions together, it [was]
impossible to say that examination of all the class members’ claims for relief . . . produce[d] a
common answer to the crucial question why was I disfavored.” Id. at 352 (emphasis in original).
Ultimately, the Supreme Court found that there was no commonality to respondents’ merits
contention that Wal-Mart engaged in a pattern or practice of discrimination, because, although the
hiring and promotion decisions were based on a single Wal-Mart policy, the policy allowed
discretion by local managers over employment matters, leading the Supreme Court to conclude
that there was no “glue” holding the alleged reasons for all the hiring and promotion decisions
together. Id. at 352, 355-60. The Supreme Court held that because the employment decisions were
made by different Wal-Mart managers, across different stores, at different times, and for different
reasons, there was “no convincing proof of a companywide discriminatory pay and promotion
policy.” Id. at 359-60.
Here, the petitioners argue that commonality is satisfied because all the class members
have suffered the same injury – delay – “the denial of timely benefits due to the VA’s broken
appeals process.”10 Pet.’s Response at 12. The petitioners state that, although “the length of time
they have waited for resolution of their pending appeals” is varied, this variance is unimportant
“so long as the wait is more than [12] months.” Id.
The petitioners identify two legal questions common to the proposed class members:
(1) Whether extensive delays in failing to render decisions on disability claims within 12 months
of timely NODs violate the proposed class members’ due process rights; and (2) whether the
proposed class members are entitled to a writ of mandamus compelling the Secretary to correct
the severe delays and inaction under Telecommunications Research & Action Center v. FCC
(TRAC), 750 F.2d 70 (D.C. Cir. 1984).11 Pet.’s Response at 13.
10 In support of their Amended Petition, the petitioners point out that it takes a veteran an average of 6 years
after the veteran files an NOD to receive a Board decision.
11 The petitioners had argued that they had a third question in common: Whether VA’s delay in adjudicating
the proposed class members’ claims amounts to an arbitrary refusal to act under Costanza v. West, 12 Vet.App. 133
(1999) (per curiam order). The petitioners had urged the Court to reject the Costanza standard and instead adopt the
TRAC test for determining whether a writ of mandamus should issue. In Martin v. O’Rourke, 891 F.3d 1338, 1348
8
Though the petitioners argue that the reasons for delay are irrelevant to their two theories,
the law makes clear that each of the petitioner’s legal theories requires this Court to determine
whether VA’s delay is unreasonable. Whether delay is unreasonable can be determined by
examining the substantive claims underlying their petition. For example, a claim based on a
constitutional due process violation requires the Court to examine the justification VA offers for
the delay. In Federal Deposit Insurance Corp. v. Mallen, 486 U.S. 230, 242-43 (1988), the
Supreme Court examined a process permitting a postsuspension hearing followed by a 90-day
delay in issuing a decision on a bank officer’s suspension from office. In evaluating whether there
had been a due process violation, the Supreme Court applied a balancing test involving the
importance of the private interest and harm to that interest caused by delay; the justification offered
by the Government for the delay and its relation to the underlying governmental interest; and the
likelihood that the interim decision may have been mistaken.12 Id.
Similarly, before this Court may conclude that VA’s adjudication of the putative class
members’ appeals has been unreasonably delayed under TRAC, the Court must examine VA’s
explanation for the delay and weigh this explanation against other factors.13 In Martin, supra
note 11, the Federal Circuit stated that the first TRAC factor, referred to as the “rule of reason,”
requires the Court to “look at the particular agency action for which unreasonable delay is alleged,”
noting that “more complex and substantive agency actions” may be expected to take longer than
“purely ministerial ones.”14 891 F.3d at 1345-46. The Federal Circuit also noted that the Court may
consider whether the delay is based on “complete inaction by . . . VA” or whether the delay may
be attributed, in part, to “VA’s statutory duty to assist a claimant in developing his or her case.”
Id.15 Thus, the reasonableness or unreasonableness of VA’s delay is a key element of each of the
petitioner’s claims.
(Fed. Cir. 2018), the Federal Circuit adopted the TRAC standard, in place of the Costanza standard, as the framework
for this Court to use in evaluating mandamus petitions based on unreasonable delay. Because of the Federal Circuit’s
holding in Martin, there is no need to address class certification based on Costanza.
12 The Supreme Court reformulated the balancing-factors test announced in Mathews v. Eldridge, 424 U.S.
319 (1976), for assessing the permissibility of postdeprivation process. See Jordan by Jordan v. Jackson, 15 F.3d 333,
345-46 (4th Cir. 1994) (applying Mallen factors in evaluating whether a delay in judicial review of a decision removing
a child from his home, including the “likelihood that the state’s removal of a child . . . will have been without cause,
the strength of the state’s justification for the delay, and the closeness of the relationship between this justification and
the government’s underlying interest”).
13 TRAC’s unreasonable-delay analysis requires weighing (1) the length of time that has elapsed since the
agency came under a duty to act and its relation to a “rule of reason”; (2) whether Congress has provided a timetable
or other indication of the speed with which it expects the agency to proceed; (3) the character of the interests at stake
– economic versus health and human welfare; (4) the effect of expediting delays on competing agency priorities;
(5) the nature and extent of the interests prejudiced by delays; and (6) the presence of unreasonable delay, which does
not have to be due to impropriety. TRAC, 750 F.2d at 79-80.
14 Two specific ministerial tasks highlighted by the Federal Circuit are the RO’s certifying of appeals to the
Board and the Board’s docketing of appeals. Martin, 891 F.3d at 1346.
15 Examples of other courts applying the rule of reason analysis include Irshad v. Johnson, 754 F.3d 604, 607
(8th Cir. 2014) (reviewing reasons for agency delay as part of TRAC analysis and concluding that the agency delay
was not unreasonable); Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987) (stating that under TRAC a court should
“consider the agency’s explanation, such as administrative necessity, insufficient resources, or the complexity of the
task confronting the agency”).
9
Judge Allen’s dissent contends that our opinion is based on a flawed understanding of the
theory underlying the petitioners’ claims “that there is a period of time [more than 1 year between
the filing of an NOD and the issuance of a Board decision] that is simply too long for a claimant
to wait for a decision.” Post at 26. This theory purportedly does not depend on the reason for the
delay. Indeed, Judge Allen, echoing the petitioners, states that the reasons for the delay do not
matter. Id. at 25-26. He claims that commonality exists because the petitioners pose two questions:
“[H]ow long is too long under the Constitution’s Due Process Clause?”16 and is a 1-year delay
between the filing of an NOD and the issuance of a Board decision unreasonable, entitling the
proposed class members to a writ of mandamus compelling the Secretary to correct the severe
delays and inaction? Id. Judge Allen contends that the Court is capable of answering both
questions.
Regarding the constitutional claim, Judge Allen’s dissent states that the petitioners’ theory
that some quantum period of delay is too long is supported by law and points to Cleveland Board
of Education v. Loudermill, 470 U.S. 532, 547 (1985). Mr. Loudermill, a security guard who had
been terminated from employment, had to wait 9 months for an administrative decision following
review of his termination. Id. at 535-36. He asserted that the administrative proceedings “took too
long” and that the length of this delay constituted a due process violation. Id. at 546. The Supreme
Court concluded that Mr. Loudermill had not stated a claim of constitutional deprivation because
his claim “reveal[ed] nothing about the delay” and “[he] offer[ed] no indication that his wait was
unreasonably prolonged other than the fact that it took nine months.” Id. at 547. Loudermill, like
Mallen, makes clear that delay cannot constitute a constitutional due process violation unless the
delay is unreasonable. Thus, it is clear that the unreasonableness of VA’s delay in adjudicating the
petitioners’ disability claims is a key substantive element of a due process claim based on delay.
Judge Allen’s dissent also contends that, because of our purported flawed understanding of
the true nature of the petitioners’ claims, we mistakenly insist that “the petitioners must identify
the causes for the delay to prevail.” Post at 26. The fundamental flaw with Judge Allen’s position
is that it fails to recognize that, despite the petitioners’ effort to argue that the reasons for VA’s
delay in adjudicating their compensation claims do not matter, the substantive law underscores
that a central inquiry that must be resolved for each claim is whether VA’s delay is unreasonable.
Because reasonableness and unreasonableness are relative concepts, it is impossible to determine
whether VA’s delay in adjudicating disability compensation claims falls into either category
16Judge Allen’s dissent erroneously contends that we have reframed the petitioners’ questions. Post at 26.
However, his opinion is the one that reframes the questions. The petitioners did not ask whether there was some period
of time beyond which delay is unconstitutional and warrants the issuance of a writ of mandamus because of
unreasonable delay. Rather, they asked two very specific questions: Whether a 1-year delay between the filing of the
NOD and the issuance of a Board decision violates the Constitution’s Due Process Clause and whether such delay
entitles the petitioners to a writ of mandamus. Essentially, Judge Allen has replaced the very specific 1-year period
selected by the petitioners with a broad, unspecified period. The effect of his reframing of the issues is that the Court
would be left to fill in the blank and determine the exact time period that will or will not survive constitutional muster
or entitle the petitioners to a writ of mandamus. Judge Allen’s reframing of the issues also sends a signal to putative
classes that the Court will gladly reframe issues for class certification purposes, a practice to be discouraged as it may
encourage slapdash pleadings.
10
without exploring the reasons for the delay.17 Our insistence that the petitioners identify the reasons
for delay is so that we may determine whether commonality exists.
Contrary to Judge Allen’s claim, the purpose of our examination of the varying reasons for
delay at VA is not to resolve the merits of the claim. Rather, we conform with the duty under
Rule 23(a), to look beyond the pleadings to “understand the claims, defenses, relevant facts, and
applicable substantive law in order to make a meaningful determination of the certification issues.”
Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996); see Wal-Mart, 564 U.S. at 351-52.
This obligation to examine the nature of the substantive claim to see whether commonality exists
among the class is part of the “rigorous analysis” that the certifying court must make. Wal-Mart,
564 U.S. at 351; see Stockwell v. City & Cty. of San Francisco, 749 F.3d 1107, 1114 (9th Cir.
2014) (“To assess whether the putative class members share a common question, the answer to
which ‘will resolve an issue that is central to the validity of each one of the [class members’s]
claims,’ we must identify the elements of the class members’s case-in-chief.” (quoting Wal-Mart,
564 U.S. at 350)).
The Secretary contends that there is no common answer to the question of the cause of
VA’s delay for each of the proposed class members. Secretary’s Response to the Court’s Oct. 2017
Order at 18-24. The Secretary points out that compliance with the statutory duty to assist is
responsible for the delay experienced by some veterans.18 Id. at 20-23. Additionally, he notes that
VA’s duty to provide veterans hearings on their claims may cause delay.19 Id. And, in other cases,
delay is precipitated by the number and complexity of the claims on appeal.20 Id. Further, the
Secretary argues that, because a delay of any particular period of time may be quite reasonable in
one case and extremely unreasonable in another, certification of a broad class based on allegations
of systemic delay throughout VA’s two-step appellate process is inappropriate.21 Id. The Federal
17 Judge Allen’s dissent maintains that Wal-Mart supports his analysis that reasons for the agency delay do
not matter in this case. Judge Allen’s dissent contrasts employment discrimination claims with the petitioners’ due
process claims. Judge Allen’s dissent contends that, in employment discrimination claims, the “reasons for
employment actions mattered in terms of their legality.” Post at 25. By contrast, Judge Allen’s dissent maintains that
the legality of VA’s actions do not depend on the reasons for VA’s delay. However, Judge Allen’s dissent fails to
recognize that the reasons for VA’s delay do matter in terms of the legality of the delay. The only delay that may give
rise to the petitioners’ constitutional or statutory claims is delay that is unreasonable. And, because not all delay within
the VA claims system is unreasonable, the reasons for VA’s delay do matter.
18 Petitioners Briggs, Coyne, Hudson, Merrick, and Stokes continued to submit evidence throughout the
appeal. Additionally, VA assisted these petitioners by obtaining records and scheduling VA medical examinations.
19 Petitioners Coyne, Dolphin, Hudson, Merrick, and Stokes requested or participated in either DRO or Board
hearings, and some petitioners participated in both.
20 Petitioners Briggs, Coyne, Dolphin, Hudson, Merrick, and Stokes filed multiple claims, including as many
as 19 claims.
21 The Secretary notes that courts have been cautious in certifying cases involving allegations of due process
violations. See, e.g., Crosby v. SSA, 796 F.2d 576, 581 (1st Cir. 1986) (denying class claims alleging due process
violations based on unreasonable delays; “delays may be analyzed for reasonableness only in the context of individual
cases”); Dale v. Hahn, 440 F.2d 633, 640 (2d Cir. 1971) (finding that it may be “more appropriate to handle difficult
constitutional questions arising from the application of a statute to varying fact-patterns on a case-by-case basis rather
than in a class action”); Lightfoot v. Dist. of Columbia, 273 F.R.D. 314, 326, 326-28 (D.D.C. 2011) (stating that a
“more amorphous due process claim [of systemic misconduct], which turns on the flexible, multi-factor balancing test
mandated by Mathews, is not as easily susceptible to class[]wide treatment”); see also Jennings v. Rodriguez,
138 S. Ct. 830, 852 (2018) (remanding case for lower court to consider whether a Rule 23(b)(2) class action continues
11
Circuit echoed a similar sentiment in Martin, when it stated that, given the nature of the
reasonableness inquiry, “we see no reason to articulate a hard and fast rule with respect to the point
in time at which a delay becomes unreasonable” under the TRAC standard. Martin, 891 F.3d at
1346.22 The Federal Circuit reasoned that “[b]ecause . . . reasonableness depends on the particular
agency action that is delayed, a two-year delay may be unreasonable in one case, and it may not
be in another.”23 Id.
The Secretary’s argument is persuasive. The petitioners have chosen not to seek to certify
a class based on a specific practice or policy by the Secretary that results in unreasonable delays.
Instead, the petitioners have posited that there is systemic delay throughout the appeals process,
but they have not attempted to identify the causes for the delay, such that determining the “truth
or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.”24
Wal-Mart, 564 U.S. at 350. “Mere allegations of systemic violations of the law . . . will not
automatically satisfy Rule 23(a)’s commonality requirement.” Devaughn, 594 F.3d at 1195.25
to be the appropriate vehicle for due process claims, noting that due process calls for “‘flexib[ility]'” (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972))).
22 The Federal Circuit also agreed with our Court’s decision below not to rely on the petitioners’ proffer of
VA’s average statistical delay to answer the reasonableness inquiry, because the statistics are “merely speculative,”
and the Federal Circuit reiterated that VA’s potential delay “depend[s] on a long ‘chain of hypothesized actions'” in
each petitioner’s case. Martin, 891 F.3d at 1346 n.10 (quoting Ebanks v. Shulkin, 877 F.3d 1037, 1039 (Fed. Cir.
2017)).
23 Martin also noted that a claim that an individual has been denied due process because of delayed agency
action “‘is essentially no different than an unreasonable delay claim.'” Martin, 891 F.3d at 1348 (quoting Vietnam
Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C. Cir. 2010)).
24 The petitioners’ lack of regard for whether the complained of delay is unreasonable may be illustrated by
the decision to include Ms. Obie as a named petitioner. The petitioners do not dispute the Secretary’s assertion that the
lengthy delay Ms. Obie experienced is a result of her failure to submit a particular form to VA.
25 Courts have made similar decisions. See, e.g., M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 843-44
(5th Cir. 2012) (denying class certification where the proposed common issues “‘stretch[] the notions of commonality’
by attempting to aggregate several amorphous claims of systemic or widespread conduct into one ‘super-claim'”
(quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997))); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,
494, 497 (7th Cir. 2012) (dismissing a class that “sought to lump together thousands of disparate plaintiffs with widely
varying individual claims”); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (finding that, instead of
advancing a discrete question of law, the proposed class broadly “conflate[d] a variety of claims to establish
commonality via an allegation of ‘systemic failures'”); Stewart v. Winter, 669 F.2d 328, 337 (5th Cir. 1982) (denying
class certification where there was only an abstract common question meaning that “any allegation of a breach of legal
duty by any class of defendants – no matter how vast or diverse – could be impressed into a single case”).
12
On the other hand, courts have found commonality when the substantive challenge of a
proposed class was confined to a specific policy or course of conduct that affects all members of
the putative class in the same way. See, e.g., DL v. District of Columbia, 860 F.3d 713, 724 (D.C.
Cir. 2017) (certifying four subclasses defined in reference to particular uniform policies or
practices); Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426,
436, 440 (7th Cir. 2015) (upholding class certification in a racial discrimination suit where three
African-American teachers lost their positions as part of a “turnaround” policy of deficiently
performing schools); Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014)
(affirming certification of wage-and-hour class action where class challenged a specific company
payment policy that applied to all class members).
In Parsons v. Ryan, 754 F.3d 657, 662 (9th Cir. 2014), the U.S. Court of Appeals for the
Ninth Circuit (Ninth Circuit) approved the district court’s certification of a class and subclass. The
class consisted of inmates seeking redress from deficiencies in the prison health care system that
had allegedly exposed all inmates to a substantial risk of serious harm. The subclass consisted of
inmates who claimed that the conditions of isolation units constituted cruel and unusual
punishment. Id. In making the claims about systemic deficiencies, the class members identified 10
specific uniform statewide policies and practices governing the health care system and 7 specific
policies governing the prison isolation units. Id. at 678. The Ninth Circuit found that the district
court had not abused its discretion in certifying the class and subclass because the class members
pointed to specific policies and practices that were “defined with sufficient precision and
specificity; they involve particular and readily identifiable conduct on the part of the defendants.”
Id. at 683. In discussing the policies of the health care system, the Ninth Circuit stated:
Each of these 10 policies and practices affords a distinct basis for concluding that
members of the putative class satisfy commonality, as all members of the class are
subject identically to those same policies and practices, and the constitutionality of
any given policy and practice with respect to creating a systemic, substantial risk of
harm to which the defendants are deliberately indifferent can be answered in a
single stroke.
Id. at 679 (emphasis added). The lesson to be learned from Parsons is that a class proceeding may
be an appropriate vehicle to challenge systemic deficiencies, but only when the putative class
targets specific polices or practices that allegedly violate the law. However, at oral argument, the
petitioners clarified that they do not challenge specific VA policies or practices. See Oral
Argument (“Oral Argument”) at 31:15-44, Monk v. Wilkie, U.S. Vet. App. No. 15-1280 (oral
argument held Mar. 5, 2018), http://www.uscourts.cavc.gov/oral_arguments_audio.php
(petitioners’ counsel clarifying: “[T]here is no express system-wide policy or procedure [that we
are challenging].”).
Here, we conclude that there is no common question for the petitioners’ and putative class’s
cause of delay, the answer to which “will resolve an issue that is central to the validity of each one
of the [class member’s] claims.” Wal-Mart, 564 U.S. at 350. Therefore, we conclude that, because
the petitioners have not satisfied the commonality requirement, the Court need not address the
remaining Rule 23(a) prerequisites.
13
E. Rule 23(b)(2)
The petitioners seek relief in the form of an order from the Court directing the Secretary to
issue a Board decision in all the putative class members’ claims within 1 year following the timely
filing of an NOD. Yet, apparently recognizing that some of the delay in adjudicating VA claims is
reasonable and is related to VA’s development of evidence to support a veteran’s claim, the
petitioners propose that the 12-month deadline could be waived by a veteran to allow the claim to
be developed.26 See Oral Argument at 15:30-16:05, 45:40-46:00, 59:33-1:00:14, 2:24:30-2:26:09.
Rule 23(b)(2) of the Federal Rules of Civil Procedure permits a court to certify a case for
class-action treatment if “the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Rule 23(b)(2), on the other hand, “does not authorize
class certification when each individual class member would be entitled to a different injunction
or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360. In Wal-Mart, the
Supreme Court stated that “the key to the (b)(2) class is ‘the indivisible nature of the [relief].'” Id.
(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
REV. 97, 132 (2009)). The idea underlying Rule 23(b)(2) is that the relief applies to all the class
members, or to none of them. Id. Here, the relief proposed by the petitioners does not satisfy
Rule 23(b)(2) because it would require that the remedy be individualized and tailored to the needs
of the individual veteran. This kind of relief would not truly be classwide. The relief the petitioners
seek does not satisfy Rule 23(b)(2)’s standard as there is no single injunction that provides relief
to the class as a whole.
Upon consideration of the foregoing, it is
ORDERED that the petitioners’ motion for class certification is DENIED.
DATED: August 23, 2018
DAVIS, Chief Judge, concurring: I fully join Judge Schoelen’s opinion. I write separately
to make the point that time spent by VA processing cases is not always unreasonable or
unconstitutional delay. I also believe that 5 to 7 years generally for claims processing at VA is
unreasonable, that is, takes entirely too long. With a backlog of more than 450,000 cases, the
claims processing system needs to be radically changed to provide more efficient claims
resolution, perhaps a reasonable goal would be to resolve, claims within 3 years. A good system
would include the following features, among others: Finality, a closed record, aggregate claims
resolution, alternative dispute resolution, and claims waivers for immediate cash payments.
Without radical change or a new system implementing the features mentioned, backlog and delay
will continue to be the norm.
The petitioners in this case have asserted that a 1-year delay from the filing of an NOD to
a Board decision is unconstitutional or, at a minimum, statutorily unreasonable. In her opinion,
Judge Schoelen correctly recognizes that answering this question requires the Court to consider
26 Because the development of a claim may include hearings before the RO and the Board, it would appear
this waiver may also have to be extended to the right to have a hearing.
14
the cause of the delay and that the petitioners have not demonstrated a common question or
common answer as required by Wal-Mart Stores, Inc. v. Dukes, 546 U.S. 338 (2011).
In his dissent-in-part, Judge Allen, joined by Judges Bartley and Toth, frames the class
issue as whether the “delays in the VA benefits system are both unconstitutional and ‘unreasonable’
no matter the reason.”27 He believes that this issue presents common questions, such as “how long
is too long under the Constitution’s Due Process Clause? 28 or “whether a 1-year delay between the
filing of an NOD and the rendering of a decision is ‘unreasonable,’ regardless of the constitutional
boundary,”29as “they are the same for every person who is a member of the class.”30 I do not agree.
Wal-Mart instructs that “[c]ommonality requires the plaintiff to demonstrate that the class
members ‘have all suffered the same injury,’ . . . [not] merely that they have all suffered a violation
of the same provision of law.”31 The proposed class questions in Judge Allen’s dissent-in-part focus
only on the latter part of the inquiry—whether the petitioners’ constitutional or statutory rights
have been violated—without regard to whether their injuries are, in fact, common, or whether
addressing their injuries is “of such a nature that it is capable of classwide resolution.”32
These are critical questions because, “[w]ithout some glue holding the alleged reasons for
all the alleged [delays] together, it will be impossible to say that examination of all the class
members’ claims for relief will produce a common answer to the crucial question why was [my
claim delayed]?”33 Thus, Wal-Mart requires that a class must have claims that “depend on a
common contention” that is “capable of classwide resolution” such that a “determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.”34 Here, there are countless different reasons for processing time for each claim; therefore,
one answer will not resolve all claims. Significantly, claims processing time does not necessarily
mean “delay.”
As Judge Schoelen notes, “[t]he petitioners have chosen not to seek to clarify a class based
on a specific practice or policy by the Secretary . . . . [and] they have not attempted to identify the
causes for the delay.”35 But the four Judges finding no commonality do not, contrary to the position
taken by my colleagues in Judge Allen’s dissent-in-part, reject the petitioners’ legal theory or
improperly reach the merits of their claims. Instead, Judge Schoelen’s opinion recognizes that the
VA appeals process is not a monolith and that any answer to the petitioners’ questions requires a
27 Post at 23.
28 Post at 24.
29 Post at 24.
30 Post at 25.
31 546 U.S. at 350.
32 Id.
33 Id. at 352.
34 Id. at 350.
35 Ante at 11.
15
fact-specific inquiry driven by multifactor balancing tests.36 Indeed, as the Federal Circuit recently
recognized, whether a delay is unreasonable in any given case hinges, in part, on a “‘rule of reason’
analysis [that] must, of course, look at the particular agency action for which unreasonable delay
is alleged” and “whether the delays complained of are based on complete inaction by the VA, or
whether the delays are due in part to the VA’s statutory duty to assist a claimant in developing his
or her case.”37
The VA adjudication process is complex, consisting of many stages that impose many
obligations on both VA and the claimant. Some stages—particularly those involving only
administrative or ministerial tasks—may indeed produce unlawful delays.38 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. The amount of time it takes to
properly develop an appeal will necessarily vary case by case and veteran by veteran, and it is
wrong to equate the mere passage of time with delay without some inquiry into why time has
passed.
Ultimately, whether 1 year, 5 years, or even 10 years elapsing between an NOD and a
Board decision is unlawful depends entirely on what caused that much time to pass. To rule on the
constitutionality or reasonableness of a delay,39 the Court must apply balancing tests based on
many factors, including the reasons for that delay. Based on the extremely broad assertions
presented by the petitioners in this case, Judge Schoelen’s opinion correctly finds no commonality.
This is not to say that, in a case where petitioners show that the weights on the balancingtest
scales are the same for each class member, the Court would not certify a class to challenge
part of VA’s appellate process. There may very well be portions of that process that are ripe for
aggregate remedies, and I am confident that the Court would certify a class when presented with
the appropriate facts.
Finally, I want to emphasize the significance of the Court’s decision and the historic nature
of this case. Although Judge Allen calls Judge Schoelen’s opinion a “plurality,” that label is only
partly accurate. As I read the various separate statements filed in this decision, six other judges
join that part of Judge Schoelen’s opinion prior to section II.D, addressing commonality. Those
sections agreed upon by seven of the Court’s Judges may well constitute a majority opinion, and I
see no reason why those sections are not entitled to recognition as binding precedent. Only the
commonality and remedy sections lack precedential value.
36 See ante at 8 (describing the balancing tests required by our precedent).
37 Martin v. O’Rourke, 891 F.3d 1338, 1345, (Fed. Cir. 2018).
38 See id. (“For example, [the Court] should consider whether delays are due to the agency’s failure to perform
certain ministerial tasks such as filling out the form certifying the appeal to the [Board] and docketing by the [Board].”)
39 But see id. at 1348 (“If the Veterans Court, employing the [] analysis [set forth in Telecommunications
Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 76 (D.C. Cir. 1984)], finds a delay unreasonable (or not
unreasonable), it need not separately analyze the due process claim based on that same delay.” (citing Vietnam
Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C. Cir. 2010))).
16
In the precedential parts of its decision, the Court holds that it will, in appropriate cases,
entertain class actions. This holding is a seismic shift in our precedent, departing from nearly 30
years of this Court’s case law. The fact that the Court did not find aggregate action appropriate in
this case does not change the fact that this is a watershed decision, and its importance should not
be diminished merely because the Court declined to certify this proposed class. On the contrary,
the Court’s decision will shape our jurisprudence for years to come and, I hope, bring about positive
change for our Nation’s veterans and ensure that justice is done more efficiently and timely.
ALLEN, Judge, with whom BARTLEY and TOTH, Judges, join, concurring in part and
dissenting in part.
To state the obvious, this is an incredibly important case. I concur fully in the plurality
opinion’s40 determinations that the Court will, in appropriate cases initiated by a petition, utilize
class action or aggregate resolution procedures and that it will consider Federal Rule of Civil
Procedure 23 as a guide for doing so. See ante at 6. These are important decisions for this Court
and its congressionally mandated role to provide meaningful judicial review to veterans41 and other
claimants in the VA system.42
I part ways with the plurality, however, with respect to its determination that the proposed
class does not satisfy the prerequisites for certification. Specifically, the plurality concludes that
the proposed class does not qualify for class treatment principally because it does not satisfy the
requirement under Federal Rule of Civil Procedure 23(a)(2) that “there are questions of law or fact
common to the class.” See ante at 6,12. I believe the plurality fundamentally misapprehends and
misapplies this commonality requirement by imposing too high a bar for certification and
conflating resolution of the merits of the petitioners’ claims with the procedural question of
commonality.
40 I refer to Judge Schoelen’s opinion as the “plurality” because it is the opinion in which the most Judges
concur. It might have been more accurate to describe the opinion as a concurrence, but for what it’s worth, I’ve used
“plurality.”
41 In the remainder of this opinion, I generally use the term “veteran” to describe those individuals
participating in the VA administrative appeals process. I mean “veteran” to encompass all claimants for benefits,
including non-veteran claimants, unless context dictates otherwise.
42 I also thank counsel for the parties and amici for the universally excellent briefing in this matter. I would
never have thought that nearly 500 pages of legal argument would serve to simplify matters, but it did. That was due
in large measure to the serious attention devoted to putting these materials together.
17
As I explain below, the plurality does not accept the claims the petitioners make in this
matter. The petitioners claim that the current system for resolving VA administrative appeals leads
to delays that are simply too long under both the Constitution and the statutes regulating the
Agency. The petitioners also claim that this delay is unlawful because resolving the appeal takes
longer than 1 year. These may not be “good” claims, but they are the petitioners’ claims. And it is
those claims the Court should use to make the certification decision at hand. By refusing to accept
the petitioners’ claims, the plurality stacks the deck against certification. This is unfortunate. In so
doing, the plurality has effectively precluded the Court from playing a meaningful role in
addressing the systemic deficiencies plaguing the veterans benefits system—at least for today.
Accordingly, I respectfully dissent.
In the detailed opinion that follows, I begin by considering the factual and procedural
context of the petitioners’ claims for class action treatment. This discussion is important not only
to lay the foundation for the legal arguments, but also to make clear just how serious the claims
the Court faces are. Thereafter, I comment briefly on the portions of the plurality opinion in which
I concur. Finally, I turn to a detailed explanation of why the proposed class satisfies the
requirements for class treatment including commonality.43
I. THE FACTUAL AND PROCEDURAL CONTEXT
In his novel Bleak House, Charles Dickens writes of a fictional case in the English High
Court of Chancery, Jarndyce v. Jarndyce. That suit had been pending for so long that
“[i]nnumerable children have been born into the cause; innumerable young people have married
into it; innumerable old people have died out of it . . . [and] a long procession of Chancellors has
come in and gone out.” 1 WORKS OF CHARLES DICKENS 4-5 (1891). For Dickens, Jarndyce v.
Jarndyce was a useful literary device to tell his story. Sadly, however, it is also an apt analogy for
what countless veterans face when seeking benefits from the Department of Veterans Affairs.44
The petitioners are all veterans who served our Nation and sought benefits from VA. And
each has waited years to have their benefits claim decided after they disputed an initial decision
by filing an NOD. The details of their stories vary (as one would expect), but the ultimate outcome
is the same: significant delays.45
Unfortunately, the petitioners are not outliers. VA’s veterans benefits system is beset by
delays certainly rivaling those in the fictional Jarndyce v. Jarndyce, some of which are quite
difficult to comprehend. As of May 2017
43 As I explain, I would certify the class. That is all the Court is called on to decide today. I do not address
either merits or remedial issues in this opinion, beyond what is necessary to address the certification question.
44 The Supreme Court has also used Bleak House to invoke the notion of legal proceedings that seemingly
have no end. See, e.g., Stern v. Marshall, 564 U.S. 462, 468 (2011); Hartman v. Moore, 547 U.S. 520, 526 (2006).
45 We should never forget the human faces associated with the abstract concept of administrative delay. Such
delays for veterans seeking benefits can have profoundly significant real-world implications. See Amicus Curiae Brief
of Swords to Plowshares, Connecticut Veterans Legal Center, New York Legal Assistance Group, Veteran Advocacy
Project, and Legal Aid Service of Broward County in Support of Petitioners at 7-19 (Feb. 8, 2018), Monk v. Shulkin,
U.S. Vet. App. No. 15-1280 (argued Mar. 5, 2018), http://efiling.uscourts.cavc.gov (describing consequences such as
homelessness, health problems, and threats to physical safety flowing from delays in VA benefits adjudications).
18
 After filing an NOD, a veteran waits on average 16.5 months to receive a Statement of
the Case (SOC);
 a veteran who elects to proceed with a formal appeal to the Board after receiving an
SOC waits on average 33 months for VA to certify and transfer the appeal to the Board,
an action that is largely ministerial; and
 a veteran then waits yet another 9.5 months for the Board to issue a decision. 46
Combined, these figures mean that after a veteran initiates an administrative appeal by filing an
NOD, the veteran waits nearly 5 years for a Board decision. This is staggering. Moreover, unlike
in Dickens’ fictional tale, we do not have just a single case. Instead, there are more than 450,000
claims in appellate status before VA. See Board of Veterans’ Appeals, Annual Report FISCAL YEAR
2016, at 30 (2017).
The petitioners sought to exit the “hamster-wheel” on which they found themselves. See
Coburn v. Nicholson, 19 Vet.App. 427, 434 (2006) (Lance, J., dissenting) (discussing “the
hamster-wheel reputation of veterans law”). They filed petitions under the All Writs Act, 28 U.S.C.
§ 1651(a), seeking an order “directing [the Secretary] to render decisions on pending appeals
within one year of receipt of timely NODs and to render decisions on [the named petitioners’]
pending appeals within sixty days.”47 Amended Pet. at 19. The petitioners claim that the current
VA system is so poorly designed and managed that the time it takes to render decisions is unlawful
under both statutory and constitutional principles. See Amended Pet. at ¶¶ 30-48.
The petitioners essentially argue that the delays in the VA benefits system violate the law
in two independent ways, regardless of the reasons for the delay. That is, the petitioners posit that
there is a time that is simply “too long” to wait for a result, no matter what makes the process that
lengthy. First, the petitioners note that, as claimants seeking benefits, they have a constitutionally
protected property interest in their benefits claims. Id. at ¶ 31 (citing Cushman v. Shinseki, 576
F.3d 1290, 1298 (Fed. Cir. 2009)). Given this constitutionally privileged status, the petitioners
continue, the flexible balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976), indicates that
the average delays in the VA system are unconstitutional. Amended Pet. at ¶¶ 32-35. Alternatively,
46 The statistics I provide above are taken from the Board’s May 5, 2017, response to the petitioners’ request
under the Freedom of Information Act (FOIA). This document is attached as Exhibit A to the Corrected Amended
Petition for Extraordinary Equitable and Collective Relief (Amended Pet.). The statistics are consistent with statistics
contained in a recent VA Office of Inspector General report that the petitioners submitted as supplemental authority.
See VA OIG REPORT No. 16-01750-79, VETERANS BENEFITS ADMINISTRATION, REVIEW OF TIMELINESS OF APPEALS
PROCESS, (Mar. 28, 2018)
47 Counsel for the petitioners made clear at oral argument that the “decisions” referred to in the amended
petition were those of the Board. Oral Argument at 10:32-11:22. The petitioners were far too coy in the amended
petition about what “decisions” they sought. The lack of clarity on that point does not have legal significance because
we know now what the term means as used in the petition. Nevertheless, the failure to be upfront about this issue
affected both counsel for the Secretary and the Court. Given the otherwise high quality of the petitioners’ papers and
argument in this case, I remain quite baffled about the decision to “hide the ball” on such an important issue.
19
the petitioners assert that these delays are “unreasonable” to the degree that the Court has the
statutory authority to correct them. Id. at ¶¶ 36-48; see 38 U.S.C. § 7261(a)(2) (providing that the
Court has the power to “compel actions of the Secretary unlawfully withheld or unreasonably
delayed”).
The class proposed to address the claimed legal deficiencies in the VA system was defined
(as seen through the lens of the oral argument clarification concerning the meaning of “decision,”
see supra note 46) as individuals who
(1) “applied for and [had] been denied VA disability benefits in whole or in part;”
(2) “timely filed an NOD upon denial of an original, reopened, or remanded
claim;” and
(3) did not receive a Board “decision on the pending appeal within twelve (12)
months of the date of the NOD.”
Amended Pet. at ¶ 13.
Of course, each petitioner has his or her own story leading to a purported unreasonable
delay.48 Each may seek relief independently, so why proceed as a class? The Federal Circuit
effectively answered that question in Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. 2017). That
appeal concerned the denial of a writ of mandamus based on delay in holding a Board hearing. Id.
at 1038. The Federal Circuit commented that it was uncomfortable with granting a writ in an
individual case for “veterans who claim unreasonable delay in VA’s first-come-first-served queue.”
Id. at 1039-40. This was so because granting individual relief “may result in no more than linejumping
without resolving the underlying problem of overall delay.” Id. at 1040; see Monk v.
Shulkin, 855 F.3d 1312, 1321 (Fed. Cir. 2017) (commenting that “a claim aggregation procedure
may help the Veterans Court achieve the goal of reviewing the VA’s delay in adjudicating
appeals”); see also Young v. Shinseki, 25 Vet.App. 201, 215 (2012) (en banc) (Lance, J.,
dissenting) (noting the Secretary’s tendency to correct problems of veterans raised in a petition
such that that individual dispute becomes moot). So, what was to be done? The Federal Circuit
stated that “the issue [of systemic delay] seems best addressed in the class-action context, where
the court could consider class-wide relief.” Ebanks, 877 F.3d at 1040.
As I explain below, the plurality’s interpretation of class certification prerequisites renders
the Federal Circuit’s comments in Ebanks largely meaningless. The plurality’s reading of the
commonality requirement makes it functionally impossible to certify a class in many delay claims.
That position is entirely at odds with the Federal Circuit’s comments in both Ebanks and Monk.
Before exploring this topic of disagreement, however, I take a brief detour to discuss the portions
of the plurality opinion with which I strongly agree.
48 One should not take this comment out of context. The reality that each petitioner has his or her story does
not mean that the proposed class lacks commonality. I explain why that is so in detail below.
20
II. IMPORTANT AREAS OF AGREEMENT WITH THE PLURALITY
While, as I explain below, I strongly disagree with the plurality’s conclusion that the
proposed class does not satisfy the commonality requirement, I want to be entirely clear about my
agreement with the plurality on several important matters.
First, the Court’s decision to unequivocally embrace its power to use the class action device
in connection with petitions seeking extraordinary writs is groundbreaking.49 I agree entirely with
this holding. In appropriate cases, aggregate resolution of issues will allow the Court to address
systemic problems in the VA system and more fully protect the rights of the men and women who
served our Nation. The import of this portion of the plurality’s opinion cannot be overstated.
I would expressly do one thing in this regard that the plurality does not. I would
unequivocally overrule Harrison v. Derwinski, 1 Vet.App. 438 (1991) (en banc). Nearly three
decades ago in Harrison, this Court held that it would not utilize class actions. Id. at 438-39. It did
so for three reasons: (1) The Court did not have the authority to do so; (2) class actions would be
unmanageable in an appellate court setting; and (3) class actions were unnecessary because the
Court has the power to issue precedential decisions. Id. To the extent that Harrison was ever
correct, its time in the sun has passed.
The Federal Circuit has clearly held that Harrison’s first reason (lack of authority) is
incorrect. Monk, 855 F.3d at 1322 (“We hold that the Veterans Court has the authority to establish
a class action mechanism or other method of aggregating claims.”). I also believe that the Federal
Circuit rejected (at the very least implicitly) the other two reasons, manageability and the
availability of precedential decisions, as categorical bases for not adopting a class action device.
See, e.g., id. at 1320 (discussing Harrison). But even if it has not rejected those reasons, those
reasons cannot retain any viability given the Court’s holding today that it will entertain class actions
in certain appropriate matters. Harrison cited manageability and precedential opinions as part of
its categorical rejection of class actions also. 1 Vet. App. at 438-39. Given the Court’s decision
today that there is no such categorical bar—at least with respect to petitions—Harrison cannot
remain the law. We should remove any doubt on that score and expressly overrule it.
This is not to say that manageability and the use of precedential opinions have no relevance
to whether a class action is appropriate in a specific matter; of course they do. They just no longer
serve as a complete bar to using the class action procedure.50 I return to these matters below. See
infra part III(d).
49 As does the plurality, I leave for another day whether the class action device is an appropriate procedural
vehicle in the context of an appeal. See ante at 2 n.4.
50 My point about clearly overruling Harrison is not a mere technicality. Harrison was an en banc decision
of the Court. As such, it is binding on all panels. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992). If the second
and third Harrison categories remain viable in the way Harrison described them, future panels must categorically
reject class actions. As I explained, I do not think that is a tenable position given both the Federal Circuit’s decision in
Monk and our decision today. If that is correct, there simply is no reason to leave the procedural question of Harrison’s
continued viability ambiguous.
21
Second, the Court wisely adopts Rule 23 as a guide (at least for now) in terms of using the
class action device. Rule 23 has a long history in the Federal courts and our fellow Federal judges
(as well as lawyers and law professors) have generated many resources for the Court to use as it
embarks on this endeavor. The Court quite rightly recognizes that there is no need for it to go on
this journey alone.
I pause to underscore one important point about using Rule 23 as a guide. That rule was
adopted for, and has been used by, Federal district courts. Clearly, certain portions of the rule
simply will not apply here, for example monetary-based classes under Rule 23(b)(3). There is no
reason to conclude that the Court’s use of Rule 23 as a guide means that all interpretations of that
rule in the trial court setting necessarily apply here. Our Court is unique in many ways, one of
them now being that it will be an appellate body using the class action device. Given this
uniqueness, the Court should independently assess on a case-by-case basis whether a given
interpretation of a provision of Rule 23 makes sense at this Court.51 After all, a guide is merely
that.
To repeat, these matters with which I agree are truly significant. The disagreement I have
with the plurality—to which I turn now—should not obscure that point.
III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS FOR
CERTIFICATION.
The proposed class in this case satisfies all the prerequisites for certification under the
guidance of Rule 23(a) and fits comfortably into the functional category Rule 23(b)(2) defines.
The plurality concludes that the class should not be certified because it does not satisfy the
commonality requirement of Rule 23(a)(2). See ante at 12. I first explain why that determination
is incorrect. After that, I proceed to address the remaining factors under Rule 23(a) as well as the
requirements of Rule 23(b)(2). Finally, I briefly consider why manageability concerns and the
availability of precedential decisions do not counsel against class action treatment.
A. The proposed class satisfies the commonality requirement.
The plurality’s conclusion that the proposed class fails to satisfy the commonality
requirement of Federal Rule of Civil Procedure 23(a)(2) is incorrect.52 The plurality reasons that
51 To the extent that portions of Rule 23 have constitutional underpinnings, the Court would be bound to
apply those principles.
52 As I noted above, there is no reason that the Court need adopt all non-constitutionally based interpretations
of Rule 23 when using its provisions as a guide. In an appropriate case, I would be open to considering whether the
commonality requirements the plurality derives from Wal-Mart v. Dukes, 564 U.S. 338 (2011), see ante at 7, should
apply in matters before this Court. Other courts have done the same in circumstances in which Rule 23 did not
technically apply but provided potential guidance. See, e.g., Essame v. SSC Laurel Operating Co. LLC,
847 F. Supp. 2d 821 (D. Md. 2012) (declining to apply Wal-Mart and noting that “Rule 23 standards are generally
inapplicable to [Fair Labor Standards Act] collective actions.”). Because, as I explain below, this proposed class
satisfies Wal-Mart’s heightened commonality standard, I leave that matter for another day. I do note here that the
Supreme Court’s conclusion about commonality in Wal-Mart has been the subject of sustained criticism. See, e.g.,
Robert H. Klonoff, The Decline of Class Actions, 90 WASH. U. L. REV. 729, 776 (2013) (noting that “[t]he majority
22
commonality is lacking because “[t]here is no common question for the petitioners’ and putative
class’s cause of delay.” Ante at 12.
Although the plurality accurately recites the Supreme Court’s most recent comprehensive
description of the commonality requirement in Rule 23(a)(2), see ante at 7 (discussing Wal-Mart),
it has misconstrued that decision and erected too high a bar for finding commonality. Most
critically for today’s decision, the Supreme Court noted that it was not the common questions that
truly mattered for class certification purposes, but rather whether there were common answers to
such questions sufficient to “resolve an issue that is central to the validity of each one of the claims
in one stroke.” Wal-Mart, 564 U.S. at 350. In other words, if there is no common thread connecting
the class members’ claims such that pulling that thread will affect each class member, the class is
insufficiently cohesive to warrant class treatment. See id. at 352 (“Without some glue holding the
alleged reasons for all those decisions together, it will be impossible to say that examination of all
class members’ claims for relief will produce a common answer to the crucial question why was I
disfavored.” (emphasis in original)). The Supreme Court made clear that there need be only one
common question, the answer to which drives the litigation in order to satisfy Rule 23(a)(2). Id.,
564 U.S. at 359. The plurality does not give sufficient weight to this part of the Supreme Court’s
discussion in Wal-Mart.53
The task, then, is to consider whether the petitioners’ claims have in common the answer
to at least a single question that would drive the litigation as to each member of the proposed class.
How does one go about this task? This is where things get a bit slippery.
The “slipperiness” concerns how much a court should consider the merits of a claim at the
class certification stage. As I will explain, the answer is “enough, but not too much.” To start, there
is no question that a court must consider the merits in some measure as part of the class certification
inquiry. See ante at 6 (discussing overlap between certification and merits). As the Supreme Court
noted in Wal-Mart, “[f]requently [the] rigorous analysis [required for class certification] will entail
decision in Dukes cannot be squared with the text, structure, or history of Rule 23(a)(2)”); Joseph A. Seiner,
Weathering Wal-Mart, 89 NOTRE DAME L. REV. 1343, 1365-68 (2014) (“[T]he [Wal-Mart] decision omits [] any
discussion of the vast majority of class action cases that look nothing like Wal-Mart at all. . . . This is likely because
the decision was really only intended to apply to the Wal-Mart situation itself.”); A. Benjamin Spencer, Class Actions,
Heightened Commonality, and Declining Access to Justice, 93 B.U. L. REV. 441, 444-45 (2013) (“Rule 23(a)’s
commonality language says nothing of the nature or import of the legal or factual questions that class members’ claim
must share, nor does it mandate that class plaintiffs be bound together by the ‘same injury'”).
53 As I explain above, the plurality does not accept the petitioners’ legal theory, leading the plurality to focus
on the various reasons why a claim may be delayed. See ante at 8. In recasting the petitioners’ actual claim in this way,
the plurality has obscured the common questions the class members share, questions that would advance the resolution
of the claim of each and every class member. In doing so, the plurality also engrafts onto Rule 23(a)(2) a requirement
found only in Rule 23(b)(3), namely that common issues predominate over individual ones. FED. R. CIV. P. 23(b)(3)
(providing that to certify a class under that provision of the rule a court must find “that the question of law or fact
common to the class members predominate over any questions affecting only individual members”). Justice Ginsburg
made the same argument in her Wal-Mart dissent. 564 U.S. at 375-77 (Ginsburg, J., dissenting). Justice Scalia rebuffed
the charge because, he said, the Supreme Court majority highlighted the dissimilarities in plaintiffs’ claims because
there was nothing left that could serve as the glue to hold the class claims together. Id. at 359 (“We consider
dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in
order to determine (as Rule 23(a)(2) requires) whether there is even a single common question. And there is not here.”
(internal punctuation removed; emphasis in original)).
23
some overlap with the merits of the plaintiff’s underlying claim.” 564 U.S. at 351 (internal
quotation marks omitted). This makes perfect sense. As the Supreme Court explained in an earlier
decision, “the class determination generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff’s cause of action.” Gen. Tele. Co. of Sw. v. Falcon,
457 U.S. 147, 160 (1982).
At the same time, however, it is not appropriate for a court to base its class certification
decision on the ultimate merits of the underlying claims. See, e.g., Amgen Inc. v. Conn. Ret. Plans
& Trust Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in freeranging
merits inquiries at the certification stage.”); Messner v. Northshore Univ. HealthSystem,
669 F.3d 802, 811 (7th Cir. 2012) (“[T]he court should not turn the class certification proceeding
into a dress rehearsal for the trial on the merits.”). This too makes sense. It would be strange indeed
if a court could say “the plaintiff wins on the merits, therefore the class is certified” or vice versa.
The merits must be considered not in the same way they would be to resolve the case—that is, to
determine whether one side prevails or not. As the Supreme Court made clear after Wal-Mart:
“Merits questions may be considered to the extent—but only to the extent—that they are relevant
to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen,
568 U.S. at 466 (citing Wal-Mart, 564 U.S. at 352 n.6).
An analogy may help illustrate how the commonality inquiry works as well as highlight
the error in the plurality’s reasoning. Assume that each class member’s claim is a small boat floating
on the water in a pool. The commonality inquiry (for this metaphorical pool) is trained on whether
there is a single action that will cause the pool to drain or fill such that all the boats will move
together. If there is, there is commonality among the boats because there is a single action that
affects them all “in one stroke.” See Wal-Mart, 564 U.S. at 350. This inquiry is entirely agnostic
as to whether the boats rise or fall. See Amgen, 568 U.S. at 459 (stating, in the analogous setting
of determining whether common questions predominate over individual ones, that one asks only
if there are common questions “not that those questions will be answered, on the merits, in favor
of the class.”). The key is that the single action makes them all move.
The analysis is the same if we substitute the far more serious claims these putative class
members possess for our fictional boats. Each of the class members’ claims depends on the
contention that the veteran simply has waited too long for resolution of his or her claim for benefits,
no matter what the reason. In other words, there is systemic failure. We must then determine
whether there is anything we can ask such that an answer will “in one stroke” affect each claim
(i.e., can we make the water move in such a way that each claim rises or falls). See Wal-Mart,
564 U.S. at 350. There most certainly is a question we can ask. In fact, there is more than one
question (although, as mentioned above, one is all that is necessary).
To understand why this is so, we need to recall the gravamen of the petitioners’ claims.
They assert that the delays in the VA benefits system are both unconstitutional and “unreasonable”
no matter the reason. Amended Pet. at ¶¶ 30-48. The marker petitioners set for when delay becomes
unconstitutional and/or unreasonable is 1 year from the filing of an NOD and the issuance of a
Board decision. Id. at 19 (taking into account the petitioners’ oral argument clarification). On these
allegations, common questions under Wal-Mart abound.54
54 I focus on the petitioners’ constitutional claims. It is easy to read Martin as requiring the assessment of the
24
First, the Court could answer the question: How long is too long under the Constitution’s
Due Process Clause? The petitioners may not be correct as a matter of law that 1 year between an
NOD and a Board decision is constitutionally problematic. Or they may be correct that the
Constitution does not abide that delay. Or the Court could approach the matter in a way akin to
courts that have considered whether a given system was structured in such a way that it exposes
participants to too great a risk of constitutional harm.55 Here, it might be that the petitioners cannot
convince the Court that the VA system contains too great a risk of constitutional harm. Or maybe
they will convince us that it does.
Second, the Court could decide whether a 1-year delay between the filing an NOD and the
rendering of a Board decision is “unreasonable,” regardless of the constitutional boundary.56 In
other words, the Court could avoid the constitutional question entirely. See Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon
a constitutional question although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of.”).
As both the plurality, see ante at 8, and Chief Judge Davis, see ante at 15, n.36 (Davis,
C.J., concurring), note, the Federal Circuit recently issued a decision that has implications for the
petitioners’ statutory claim. Martin v. O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018).57 The Martin
court concluded that this Court has been employing an incorrect standard for assessing whether
claimed delay by the Secretary is unreasonable. Id. at 1348. In particular, the Federal Circuit
instructed that this Court should address claims of unreasonable VA delay using a six-part standard
first articulated by the D.C. Circuit in Telecomm. Research & Action Center. v. FCC (“TRAC”),
750 F.2d 70 (D.C. Cir. 1984). Martin, 891 F.3d at 1344.
The plurality seems to suggest that the Federal Circuit’s embrace of the TRAC standard for
assessing agency delay undercuts commonality. See ante at 10-11; see also ante at 15 (Davis, C.J.,
concurring). This is not so. It may be that the adoption of the TRAC standard in place of the one
this Court used in the past will have an effect on the substantive outcome of the petitioners’ claims.
reason for delay in all cases as part of a determination of whether such delay is unreasonable. If that were the case,
the claim is far closer to Wal-Mart calling commonality into question. Of course, given the unexplored nature of the
standard Martin adopted for assessing VA delays, one could still argue that there are common questions. However, I
leave that issue for another day.
55 Such claims of systemic constitutional harm have often been resolved in class action proceedings both
before and after Wal-Mart. See, e.g., Brown v. Plata, 563 U.S. 493 (2011) (Eighth Amendment claims concerning
prison overcrowding); Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) (Eighth Amendment claims concerning systemic
deficiencies in prison provision of medical and dental care); Blankenship v. Sec’y of HEW, 587 F.2d 329 (6th Cir.
1978) (constitutional and statutory claims concerning delays in receiving hearing before the Social Security
Administration); Brown v. Guiliani, 158 F.R.D. 251 (E.D.N.Y. 1994) (in addition to statutory claims, allegations of
due process violations concerning timely processing of applications for public benefits).
56 As with constitutional claims, courts have also certified classes in the context of claims of systemic
violations of statutory rights both before and after Wal-Mart. See, e.g., DL v. D.C., 860 F.3d 713 (D.C. Cir. 2017)
(claims concerning violations of, among other things, the Individuals with Disabilities in Education Act and the
Rehabilitation Act); Blankenship, 587 F.2d at 329; Brown, 158 F.R.D. at 251.
57 While the petitioners in Martin also raised constitutional claims, the Federal Circuit declined to address
them. Id. at 1348-49.
25
But to reach that substantive outcome, the Court will need to address many questions about how
this standard applies. For example, how does the standard apply in the context of a claim, such as
the petitioners’ here, that delay on an aggregate basis is simply too great. Martin did not purport to
have resolved those questions.
The critical thing about all these questions (both as to the Constitution and the statute) is
that they are the same for every person who is a member of the class. Just as the boats in the pool
will rise or fall all at once if we can affect the water level, the answers to these questions will make
the petitioners’ claims rise or fall together. The class members will win or lose once we have an
answer. And it makes no difference whatsoever under Rule 23(a)(2) whether the answer leads to
a win for all or a loss for all. The key point—the one at the core of commonality—is that the
answer is for all. See Amgen, 568 U.S. at 460 (noting in a securities fraud case that, on the issue
of materiality, “the class is entirely cohesive: It will prevail or fail in unison.”).
Wal-Mart itself is not to the contrary. In fact, it actually reinforces why the scenario the
Court confronts here presents common questions. Wal-Mart concerned claims by female
employees that Wal-Mart unlawfully discriminated against them on the basis of sex, including
denying equal pay and promotion opportunities. 564 U.S. at 343. The Wal-Mart plaintiffs based
their claims on Title VII of the Civil Rights Act of 1964. Id. The Supreme Court determined that
these allegations did not create a common question under Rule 23(a)(2). Id. at 359.
The critical point is why there was no commonality. In the context of employment
discrimination claims, there was no question that, when the Supreme Court announced its decision,
the reasons for employment actions mattered in terms of their legality. See id. at 352 (noting that
“the crux of the inquiry [concerning plaintiffs’ unlawful employment discrimination claims] is ‘the
reason for a particular employment decision'” (quoting Cooper v. Fed. Reserve Bank of Richmond,
467 U.S. 867, 876 (1984))). The plaintiffs in Wal-Mart did not have an absolute and unqualified
right to be promoted. They merely had a right to not be passed over for promotion for an unlawful
reason or otherwise treated differently than their male coworkers.58 The facts in Wal-Mart did not
provide for a common question because Wal-Mart had a decentralized process for making the
relevant decisions. Id. at 353-60. And because Wal-Mart did not have a centralized process for
making promotion and pay decisions, there was no question that could drive resolution of the class
members’ claims overall.
But that is not the situation here. Every—I stress, every—member of the putative class has
a constitutionally protected right to procedural due process with respect to their benefits
application. Cushman, 576 F.3d at 128. And every member of the class has the right to seek the
Court’s assistance to compel the Secretary to take action unreasonably delayed. 38 U.S.C.
58 The Secretary misses the importance of the difference between an area of the law in which the reasons for
actions matter—such as employment discrimination law in Wal-Mart—and the petitioners’ claims here that some
quantum of delay is simply too long, period. Thus, the Secretary’s response to the request for class certification often
does not address the real thrust of the commonality argument. See, e.g., Secretary’s Response to Amended Pet. at 14
(“There are countless individual factors that determine the length of time it takes for a claim to work its way through
the legacy appeals system, and there is not a single action or policy within the Secretary’s unilateral control that could
alleviate the delays therein.”), 15 (“Here, there is simply no common cause for the total amount of time that passes
during a legacy appeal and there can be no common answer as to whether a violation . . . occurred such that entitlement
to a writ is clear and indisputable.”). As I explain, the plurality makes the same error as the Secretary.
26
§ 7261(a)(2). Neither of these rights is tied to an individualized reason for deprivation or delay–or
at least not so under clearly established law. This is the critical distinction between Wal-Mart and
the petitioners’ case that the plurality misses.
It does not matter that there is uncertainty about what the outer limit for constitutional
adjudication might be, whether, in fact, the VA adjudication system imposes too great a risk of
unconstitutional delay on claimants, or whether the 1-year delay is “unreasonable.” These
uncertainties are also questions that are common to the class. Is “too long” 1 year, 2 years, 20
years, or something else? Who knows at this stage? But what is certain is that those questions—
collectively and individually—are common to the class. Again, their boats will rise or fall together
based on the answer(s). That is all that is required under Rule 23(a)(2), its commonality principle,
and Wal-Mart.
The plurality’s reasoning is based on a flawed understanding of the petitioners’ claims. The
plurality insists that the petitioners must identify the causes for the delay to prevail. See, e.g., ante
at 9. In framing the issue in that way, the plurality is able to make this case look like Wal-Mart,
where the reasons for an action were dispositive.
The fundamental problem with the plurality’s reasoning for rejecting commonality is that
it is not based on the petitioners’ theory of the case. Their theory is that there is a period of time
that is simply too long for a claimant to wait for a decision. It appears that such a theory finds some
support in existing law, at least tangentially. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 547 (1985) (suggesting in the context of a post-deprivation hearing case that “[a]t some point,
a delay in the post-termination hearing would become a constitutional violation”). But even if, in
the end, this Court were to reject the legal theory petitioners advance and hold substantively that
there is no absolute time within which an administrative adjudication must be completed, that too
is a question common to the class. Every member of the class would lose.59
The plurality states that I have reframed the petitioner’s claim because the petitioners have
argued that 1 year is too long. See ante at 9 n.16. It is true that the petitioners have argued that the
period that is too long under the Due Process Clause is 1 year. But that argument does not undercut
the commonality that exists with respect to the constitutional question. Indeed, if anything it
augments it.
To address the petitioners’ constitutional claim, the Court would need to assess first
whether there is an outer limit for Agency adjudication and second, if there is, whether the
petitioners are correct that 1 year is too long. It may be that the answer to either the first or second
question is no. But if that is the case, the answer would be the same for every member of the
proposed class.
59 This is not to say that the reason for delay would never matter. Certainly, if there were some “good” reasons
for a slow process, for example, compliance with the duty to assist, that could be considered as part of the flexible
balancing process used under the Due Process Clause. This appears to be what was done in Federal Deposit Insurance
Corp. v. Mallen, 486 U.S. 230 (1988), which the plurality cites. The Supreme Court there considered reasons for delay
as part of a merits determination, not as part of a class certification determination. The same would be true here
because, had we reached the merits, the various reasons for delay could have been used in determining at what point
to draw the constitutional line concerning how much delay is too much as an absolute matter.
27
In the end, I fear that what is really happening here is that the Court is—consciously or
unconsciously—making constitutional and statutory rulings that have quite dramatic implications
for the VA system without making it clear that it is doing so. We can debate whether the
Constitution and/or the statutory scheme sets an outer limit on adjudicatory time and, if it does,
what that limit is. That is a debate worth having and one that we, as Judges, should have. But
today’s decision masks that debate behind a veil of procedure. I like procedure as much as the next
person—likely more. But procedure should never serve to implement a substantive result without
open debate. We should have a full and open discussion about these incredibly difficult and
important constitutional and statutory issues. The answers to these questions are not clear. But the
one thing that is clear is that those answers—whatever they are—are common to the putative class.
I believe the plurality is wrong in concluding they are not and, therefore, I respectfully dissent
from its commonality conclusion.
B. The proposed class satisfies the other rule 23(a) prerequisites.
Given its conclusion on commonality, the plurality had no need to consider the other
prerequisites for class certification. Because I conclude that Rule 23(a)(2)’s commonality
requirement is satisfied here, I will explain why the proposed class also satisfies the other parts of
Rule 23(a).
1. Rule 23(a)(1)–Numerosity
Class action treatment is appropriate only so long as the proposed class is “so numerous
that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). The Secretary concedes that
the proposed class satisfies this requirement. See Secretary’s Response to Amended Pet. at 11-12.
I agree that the requirement is met because there are clearly thousands (most likely hundreds of
thousands) of claimants who fit within the class definition. The proponent of the class need not
establish the exact number of members. See, e.g., Hinman v. M&M Rental Ctr., Inc., 545 F. Supp.
2d 802, 806 (N.D. Ill. 2008) (“[P]laintiffs are not required to allege the exact number or identity
of the class members, and may make common sense assumptions in determining numerosity.”).
While there is no bright line rule that establishes numerosity, the class proposed in this action
clearly satisfies that requirement under any standard. See, e.g., Cox v. Am. Cast Iron Pipe Co.,
784 F.2d 1546, 1553 (11th Cir. 1986) (generally, fewer than 21 members are inadequate while
more than 40 satisfy the numerosity requirement).
2. Rule 23(a)(3)–Typicality
Certification also requires that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). The central thrust of the
typicality requirement is that a class representative’s interests are substantially aligned with the
interests of the absent class members. See, e.g., Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th
Cir. 2006); Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). In other words, the
typicality requirement ensures that “in pursuing his own claims, the named plaintiff will also
advance the interests of the class members.” In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir.
1996). As the United States Court of Appeals for the Sixth Circuit has colorfully stated, “[t]he
28
premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so
go the claims of the class.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998).
It is also clear that, while distinct, the typicality requirement overlaps with certain other
Rule 23(a) characteristics. In particular, “[t]he commonality and typicality requirements of Rule
23(a) tend to merge.” Falcon, 457 U.S. at 157 n.13; see also Milonas v. Williams, 691 F.2d 931,
938 (10th Cir. 1982) (same).60 Given this merging, it is not surprising that the extensive analysis
of commonality set out above provides a roadmap for why the typicality requirement is also
satisfied here. In the typicality analysis, the key inquiry is framed as whether the class
representatives’ claims arise from the same course of conduct as the absent class members’ claims
and flow from the same legal theory. See, e.g., In re Drexel Burnham Lambert Grp., Inc., 960 F.2d
285, 291 (2d Cir. 1992); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.
1983). This is, in many respects, no different materially than asking whether there are common
answers to questions that will drive the litigation.
Here, the typicality standard is satisfied in the same functional way as is the commonality
requirement. The petitioners’ claim is that the VA benefits system as designed and implemented
leads to delays that are unlawful no matter the reason. Amended Pet. at ¶¶ 30-48. They have set
the relevant period as the time between the filing of an NOD and a Board decision. Id. (and as
clarified at oral argument). As the petitioners have framed them—the relevant inquiry for
typicality—the named class representatives’ claims arise from precisely the same course of conduct
as do the claims of all the absent class members and all the claims rely on the same legal theory.
This is all that is required for typicality. There is no question here that “as go[] the claim[s] of the
named [petitioners], so go the claims of the class.” Sprague, 133 F.3d at 399.
The Secretary’s arguments to the contrary, see Secretary’s Response to Amended Pet. at
18-22, fail for the same reason his commonality arguments do. Fundamentally, the arguments are
all based on the premise that the reasons for VA delays are relevant to the petitioners’ claims. But
that is just not the case on the legal theories the petitioners advance. The class representatives
satisfy the typicality requirement under Rule 23(a)(3).
60 The typicality requirement also tends to merge with the adequacy-of-representation requirement under
Rule 23(a)(4). See, e.g., Falcon, 457 U.S. at 157 n.13; Weiss v. York Hosp., 745 F.2d 786, 809 (2d Cir. 1984). I discuss
the adequacy of representation prong below.
29
3. Rule 23(a)(4)–Adequacy of Representation
Finally, a class may be certified only if “the representative parties will fairly and adequately
protect the interests of the class.” FED. R. CIV. P. 23(a)(4). “The requirement of adequate
representation is a creature of due process that exists in class actions and other representational
lawsuits where parties stand in judgment on behalf of others.” PRINCIPLES OF THE LAW OF
AGGREGATE LITIGATION § 1.05 cmt. c; see U.S. CONST., amend. V (“No person shall . . . be
deprived of life, liberty, or property, without due process of law.”). Given the importance of the
interest the adequacy-of-representation-requirement protects, class representatives are essentially
treated as acting as fiduciaries with respect to the absent class members. See Kirkpatrick v. J.C.
Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987); Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.
1983); see also PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 1.04 cmt. a, Reporter’s
Notes.
Consistent with this fiduciary role, “[t]he adequacy inquiry under Rule 23(a)(4) serves to
uncover conflicts of interest between named parties and the class they seek to represent.” Amchem,
521 U.S. at 625; see also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000)
(“It is axiomatic that a putative representative cannot adequately protect the class if his interests
are antagonistic to or in conflict with the objectives of those he purports to represent.”). A conflict
sufficient to negate the adequacy of representation may not be “merely speculative or
hypothetical.” Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010). The conflict
must be a fundamental conflict, and a conflict is “not fundamental when . . . all class members
share common objectives and the same factual and legal positions [and] have the same interest in
establishing liability.” Id. So long as there is no such fundamental conflict, a “strong overlap of
interests” is all that is required. PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 1.05 cmt. a,
Reporter’s Notes. Absent unusual circumstances, only one class representative must satisfy the
adequacy requirement. Grasty v. Amalgamated Clothing & Textile Workers Union, AFL-CIO,
CLC, 828 F.2d 123, 128 (3d Cir. 1987).
Here, the class representatives satisfy the adequacy-of-representation requirement of Rule
24(a)(4). The named petitioners and the class share the same claims both factually and legally.
Again, those claims may not be legally sustainable as framed, but they are the same. There is no
realistic suggestion of a conflict between any of the named petitioners and the class. There is also
no indication that any named petitioner would be “antagonistic” toward the class. In sum, the facts
show the named petitioners will be fiduciaries for the class. Thus, the petitioners satisfy the
requirements of Rule 23(a)(4).
Although not directly called for by Rule 23(a)(4), the adequacy prong also historically
included consideration of the adequacy of class counsel. See, e.g., Retired Chi. Police Ass’n v. City
of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). This is technically no longer the case today. “Although
questions concerning the adequacy of class counsel were traditionally analyzed under the aegis of
the adequate representation requirement of Rule 23(a)(4) of the Federal Rules of Civil Procedure,
those questions have, since 2003, been governed by Rule 23(g).” Sheinberg v. Sorensen, 606 F.3d
130, 132 (3d Cir. 2010); cf. Johnson v. Nextel Commc’ns., Inc., 293 F.R.D. 660, 672 (S.D.N.Y.
2013) (“Formerly an element of Rule 23(a)(4), this [adequacy-of-counsel] requirement is often
still considered as part of the Court’s 23(a)(4) adequacy analysis.”).
30
Rule 23(g) provides a set of factors a court must consider when determining whether class
counsel is adequate. FED. R. CIV. P. 23(g)(1)(A)(i)-(iv). The factors are counsel’s (i) work done in
investigating and developing the claims; (ii) experience in both class actions and the substantive
claims at issue; (iii) relevant legal knowledge; and (iv) willingness to commit sufficient resources
to prosecuting the action. The rule makes clear that a court is not limited to the specifically
enumerated factors and “may consider any other matter pertinent to counsel’s ability to fairly and
adequately represent the interests of the class.” FED. R. CIV. P. 23(g)(1)(B).
Proposed class counsel in this action are clearly adequate under Rule 23(g)’s standards. The
proposed class counsel are (1) the law firm Simpson Thacher & Bartlett LLP (STB) and (2) the
Veterans Legal Services Clinic, a part of the Jerome N. Franks Legal Services Organization at
Yale Law School. (Yale-LSO). Counsel have done extensive work developing the claims at issue.
The documents submitted in this Court and to the Federal Circuit make that apparent. Similarly,
when the experience of STB and Yale-LSO are combined, the knowledge of class action and
veterans law bases are covered. As is the requirement that counsel display “relevant legal
knowledge.” The commitment of these entities also suggests that they have and will continue to
support the litigation with sufficient resources. Therefore, and considering that there are no other
“matters pertinent to counsel[s’] ability to fairly and adequately represent the interests of the class,”
id., I would conclude counsel are adequate and formally appoint them to represent the class. See
FED. R. CIV. P. 23(g)(1) (“Unless a statute provides otherwise, a court that certifies a class must
appoint class counsel.”).61
C. The proposed class may be maintained under Rule 23(b)(2).
Rule 23(a) focuses on whether a class has the characteristics to justify aggregate treatment.
But even if a group has those attributes, a class action is appropriate only if it serves a specific
function. That is where Rule 23(b) comes into play. Rule 23 itself has three sub-parts, only one of
which is relevant to proceedings before this Court.
Rule 23(b)(2) provides that a class action is appropriate when “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final injunctive or
corresponding declaratory relief is appropriate respecting the class as a whole.” As the Supreme
Court has explained, Rule 23(b)(2) requires that “a single injunction or declaratory judgment . . .
provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360. Thus, if there are class
members who would not benefit from a class-wide injunction (or declaration), certification under
Rule 23(b)(2) would not be appropriate. See Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018)
(commenting, in action concerning claims for periodic bond hearings for certain people detained
under the immigration laws, that because some members of the class may not be entitled to such
hearings under the Constitution, certification under Rule 23(b)(2) might be inappropriate).
61 The Secretary suggests that “it is unclear whether Petitioners’ counsel are adequate representatives for the
interest of the absentee class members.” Secretary’s Response to Amended Pet. at 24. The Secretary may disagree with
the legal theory the petitioners advance, see id. at 24-25, 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.
31
None of this affects certification in this matter because, using Rule 23(b)(2) as a guide,
should the class prevail on the merits, the very nature of the petitioners’ claims means that every
person in the class would be entitled to enforce an injunction. The claims here do not require an
assessment of why there has been delay. Instead, all that is necessary is that there has been a certain
magnitude of delay. So, any member of the class would by the nature of the class definition have
experienced the delay and, therefore, would be entitled to enforce any injunction that might be
entered based on the claims.
The plurality concludes that the proposed remedy–a direction to the Secretary to render a
decision within 1 year of submission of an NOD–does not fall within the ambit of Rule 23(b)(2).
See ante at 13. That conclusion is infected with the same defect that infects the plurality’s
commonality analysis. The plurality concludes that an order to the Secretary would have to “be
individualized and tailored to the needs of individual veterans.” Ante at 13. But that is so only if
the reason for a delay matters on the petitioners’ theory. Because it does not, the plurality’s
conclusion that Rule 23(b)(2) would not apply is erroneous.
As with his response to commonality, the Secretary similarly misapprehends the legal
underpinning of the petitioners’ claims by assuming one must know the reason for delay. As a
result, his arguments concerning Rule 23(b)(2) often don’t address the situation we actually face
here. See, e.g., Secretary’s Response to Amended Pet. at 25 (“Put otherwise, Petitioners identify a
common effect they wish to change, but do not identify a uniform cause therefor.”). Making
essentially the same mistake just in a different way, the Secretary asserts that certification under
Rule 23(b)(2) is inappropriate because “[p]etitioners do not identify any specific act or refusal to
act by the Secretary that could be ‘enjoined or declared unlawful’ for the entire class.” Id. But this
is not so. If the petitioners are correct that the delays in the current system are just too great, the
order to the Secretary would be to ensure that class members not experience that level of delay. It
would be up to the Secretary to determine how to comply. And the key here is that the order would
apply to everyone in the class. Certification under Rule 23(b)(2) is entirely appropriate.62
62 I would also hold that, using Rule 23(b)(2) as a guide, there is no need to allow class members the
opportunity to “opt out” of the class. See FED. R. CIV. P. 23(c)(2) (providing for right to exclusion only in classes
certified under Rule 23(b)(3)); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990) (a class certified under
Rule 23(b)(2) generally does not require an opt out provision). This makes sense because the nature of the relief is
indivisible in that it applies to every member of the class even if he or she opted out of the class. See In re Allstate Ins.
Co., 400 F.3d 505, 506 (7th Cir. 2005) (commenting that “[t]he thinking behind this distinction [concerning opt out]
is that declaratory and injunctive relief will usually have the same effect on all members of the class as individual suits
would.”). I would also hold that while notice is not required to class members at certification, see FED. R. CIV. P.
23(c)(2)(A) (making notice in a (b)(2) action optional), notice should generally be provided. However, that notice
need not be individualized in the sense that notice by publication on a website or through veterans service
organizations would suffice. I would have directed the parties to prepare a notice in this case for the Court’s approval.
32
D. Manageability and Precedential Decisions63
As I noted above, I would expressly overrule Harrison. However, I would not discard the
concepts of manageability or the availability of precedential decisions that Harrison discussed in
connection with the certification of a class. Rather, I would address these matters on a case-bycase
basis when making an individualized determination whether a particular class should be
certified. In this case, manageability concerns and the availability of precedential decisions do not
counsel against using the class action procedure.
Turning first to manageability, there is little if anything in proceeding as a class in this case
that would cause the matter to be any more or less manageable than addressing these claims in
individual petitions. The questions the petitioners pose are almost entirely legal in nature. They
assert that the VA benefits system causes (or places them in an unreasonable risk of suffering)
harm because the delay they face is unreasonable and unconstitutional. See Amended Pet. at ¶¶
30-48. The assessments of these claims are the same for each member of the class. Moreover, there
does not appear to be the need for much, if any, “discovery,” that is, information gathering. Even
if there would be the need for some information gathering (for example, acquiring updated
statistics concerning delays between different stages of the administrative appellate process), this
discovery would not likely impose any meaningful burden on the parties or the Court. And in delay
cases in particular, it appears the Federal Circuit has recognized that class resolution may, in fact,
be the best means of proceeding. See Ebanks, 877 F.3d at 1040; Monk, 855 F.3d at 1320-21.
The availability of the option to issue a precedential decision also does not counsel against
the use of a class action in this case. A precedential decision certainly binds VA. But a precedential
decision does not give a person who is not a party to that case a right to enforce a decision without
instituting a separate action. If that person were a certified class member, however, he or she would
have an enforceable right subject to contempt.64 Thus, an enforceable order makes a meaningful
difference here. Once again, it also appears that the Federal Circuit would agree. See Monk,
855 F.3d at 1321 (commenting on the small number of precedential decisions of this Court and
suggesting that the class action device would address this issue).
63 Consideration of these factors in connection with class certification underscores why the Court should not
adopt Rule 23 mechanically. The availability of precedential decisions would never apply to a United States District
Court when deciding whether to certify a class. So, it makes sense that that issue is not contemplated in Rule 23.
Manageability is a concern under Rule 23, but it is specifically limited to classes certified under Rule 23(b)(3). See
FED. R. CIV. P. 23(b)(3)(D) (specifying that a consideration for certifying the claim is “the likely difficulties in
managing a class action.”). But manageability clearly matters at our Court given its appellate nature.
64 This is not an abstract difference. For example, this Court held in a precedential decision that VA had
inappropriately denied reimbursement for emergency care obtained outside the VA healthcare system. Staab v.
McDonald, 28 Vet.App. 50 (2016). This was a significant decision, but VA did not even publish an interim final rule
attempting to implement the decision until January 9, 2018. See 83 Fed. Reg. 974 (2018) (amending 38 C.F.R. §
17.1002(f)). Staab may have bound VA, but that certainly rings hollow for veterans who have received nothing in the
2 years that have passed since the Court’s decision.
33
IV. CONCLUSION
In many respects, I conclude where I began. This is a truly significant day for the Court.
To that extent, I agree with Chief Judge Davis. See ante at 15 (Davis, C.J., concurring). We have
held that the Court will use aggregate resolution procedures in appropriate cases initiated by a
petition. This decision has been decades in coming and holds great promise a means to address
systemic problems in the VA system. I wholeheartedly join the Court in this decision. I believe the
Court, however, misses an opportunity by failing to certify this class. From that ultimate
determination, I respectfully dissent.
GREENBERG, Judge, dissenting:
I.
I respectfully dissent entirely. “This petition raises important questions about how the
Government carries out its obligations to our veterans.” Mathis v. Shulkin, 137 S. Ct. 1994, 1994
(2017) (Sotomayor, J., dissenting). “[H]ow is it that an administrative agency may manufacture
for itself or win from the courts a regime that . . . does nothing to assist, and much to impair, the
interests of those the law says the agency is supposed to serve?” Id. at 1994 (Gorsuch, J.,
dissenting). The issue of systemic VA delay “is of much significance to many today and,
respectfully, it is worthy of this Court’s attention.” Id.
Systemic delay at VA is admittedly a complex issue with multiple contributing factors. But
“courts may not abdicate their role and deny any effective remedy” to victims of administrative
delay simply “because the problem is difficult.” Blankenship v. Sec’y of HEW, 587 F.2d 329, 336
(6th Cir. 1978) (Merritt, J.). Aggregate action is an appropriate remedy for claimants “seeking
relief from delays in the administrative review process.” Barnett v. Bowen, 794 F.2d 17, 22 (2d
Cir. 1986) (Feinberg, J.). This Court has been commanded by Congress to “compel action of the
Secretary unlawfully withheld or unreasonably delayed.” 38 U.S.C. § 7261(a)(2).
Our jurisdiction to hear aggregate action and provide the appropriate remedy should have
been part of our jurisdiction since Congress established an Article I court for veterans in 1988. See
28 U.S.C. § 1651; 38 U.S.C. §§ 7261(a)(2), 7264(a).
Legal precepts tend to expand, inexorably and sometimes imperceptibly. This is so, at
least in part, because a broadly-formulated legal principle is by its very nature
applicable to a wide range of situations. In any particular case, advocacy impels each
party to claim the benefit of a potentially applicable doctrine, and in the absence of
countervailing principles, consistency leads courts to decide in accordance with the
suggested rule. But as a doctrine travels beyond the circumstances which generated it,
the reasons which gave rise to that doctrine grow more attenuated, and the court is
progressively more likely to encounter off-setting policies not present in the original
application.
N.J. Ed. Ass’n v. Burke, 579 F.2d 764, 765 (3d Cir. 1978) (Adams, J.).
34
Our Court wrongly applied the law. See Lefkowitz v. Derwinski, 1 Vet.App. 439, 440
(1991); Monk v. McDonald, No. 15-1280, 2015 WL 3407451, at *1 (U.S. Vet. App. May 27, 2015)
(order), rev’d and remanded sub nom. Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) (Reyna,
J.). “In cases involving benefits owed to veterans, Congress has created a scheme conferring
exclusive jurisdiction over claims affecting veterans’ benefits to some federal courts, while
denying all other federal courts any jurisdiction over such claims.” Veterans for Common Sense v.
Shinseki, 678 F.3d 1013, 1020 (9th Cir. 2012) (en banc) (Bybee, J.). Limitations on our jurisdiction
have been merely self-imposed. See, e.g., Mokal v. Derwinski, 1 Vet.App. 12 (1990).
II.
We have been given direction, not discretion, to “use class actions to promote efficiency,
consistency, and fairness in . . . decisions” through our authority to issue writs. Monk, 855 F.3d at
1321. “[T]he issue [of unreasonable delay in VA’s first-come-first-served queue] seems best
addressed in the class-action context, where the Court could consider class-wide relief.” Ebanks v.
Shulkin, 877 F.3d 1037, 1040 (Fed. Cir. 2017). The Court ignores this command, using
unnecessary specificity to “slam the courthouse door against” the petitioner. Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 159, 178 (1970) (Brennan, J., concurring in result
and dissenting).
III.
“It is a general rule in equity, that all persons materially interested, either as plaintiffs or
defendants in the subject matter of the bill ought to be made parties to the suit, however numerous
they may be.” West v. Randall, 29 F. Cas. 718, 721 (No. 17,424) (C.C.D. R.I. 1820). Class action
“was an invention of equity . . . mothered by the practical necessity of providing a procedural
device so that mere numbers would not disable large groups of individuals, united in interest, from
enforcing their equitable rights nor grant them immunity from their equitable wrongs.”
Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir. 1948) (Sanborn, J.). “The
comprehensiveness of . . . equitable jurisdiction is not denied or limited in the absence of a clear
and valid legislative command. Unless a statute in so many words, or by a necessary and
inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction
is to be recognized and applied.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).
(Murphy, J.).
IV.
Rule 23 is a tempting minefield for the unwary. Its use as a guide creates another selfimposed
barrier by the Court and simply demonstrates how quickly the Court can adjust its timidity
and refuse to get on with it. Veterans are alleging a common delay in the adjudication of their
claims at the Board level, yet today we debate whether there is glue connecting the claimants to
each other and the system’s fractured parts. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 377
(Ginsburg, J., dissenting) (“The dissimilarities approach leads the Court to train its attention on
what distinguishes individual class members, rather than on what unites them.” (internal quotation
marks omitted)). The system is broken. We, the Court, must be the glue.
V.
Rather than adopting a rule to keep classes out, I believe we should have followed the
excellent example of the Court of Federal Claims:
35
[t]he better road to follow, until we are clearer as to the shape of the class-suit needs
in this court and the functioning of various class-suit devices, is to proceed on a caseby-
case basis, gaining and evaluating experience as we study and decide the class-suit
issues presented by individual, concrete cases coming up for resolution. If we
ultimately adopt a general rule, it will be in the light of this ad hoc experience.
Quinault Allottee Ass’n & Individual Allotteess v. United States., 453 F.2d 1272, 1276 (Fed. Cl.
1972).
Once a common problem has been presented to the Court, our inquiry regarding whether
to certify a class should be limited to numerosity and the competence of counsel to properly
represent the class. See, e.g., Rosinski v. Shulkin, 29 Vet.App. 183, 194 (2018). (Greenberg, J.,
dissenting). Here, the Court has been petitioned to address unconstitutional systemic delay at the
Board level of VA, and numerosity and counsel’s competence are not in dispute.
The Court relies on Wal-Mart to justify its denial of class certification. Wal-Mart dealt with
a class certification request for 1.5 million current and former Wal-Mart employees alleging sexbased
discrimination in pay and promotion decisions, in violation of Title VII of the Civil Rights
Act of 1964. 564 U.S. at 342. The validity of petitioners’ claims depended on unlawful
discriminatory intent by Wal-Mart and its management. See 42 U.S.C. § 2000e-1 et seq. Because
the petitioners worked in thousands of stores under thousands of managers, the Supreme Court
found that the petitioners failed to show “some glue holding the alleged reasons” for pay and
promotion decisions together, making it “impossible to say that examination of all the class
members’ claims for relief will produce a common answer to the crucial question why was I
disfavored.” 564 U.S. at 352 (emphasis in original). In essence, it was impossible to discern
whether all class members suffered an actual injury under Title VII. The constitutional violations
alleged in this case are wholly distinguishable. The alleged injury suffered by the class here is
unconstitutional delay in adjudication. The class petition sought remedy for all veterans whose
appeals had not been decided within 1 year of the date on which a Notice of Disagreement had
been submitted. Unlike the Wal-Mart petitioners, the petitioners here make it eminently easy for
the Court to determine whether any veteran has experienced the alleged injury of unconstitutional
delay. Wal-Mart cannot and should not have been read to keep this class of veterans out of the
Court.
VI.
Due process will never be afforded while the masses of veterans idle indefinitely in
gridlock. “[A]t some point delay must ripen into deprivation, because otherwise a suit alleging
deprivation would forever be premature.” Shroeder v. City of Chicago, 927 F.2d 957, 960 (7th Cir.
1991) (Posner, J.); see also Wright v. Califano, 587 F.2d 345, 349 (7th Cir. 1978) (Wood, Jr., J.).
The procedural framework for adjudicating claims must be sufficient for the “large majority” of a
group of claims to be constitutionally adequate for all. Walters v. Nat’l Ass’n of Radiation
Survivors, 473 U.S. 305, 331 (1985) (Rehnquist, J.). The Secretary deflects much of the blame
towards Congress for overburdening him with the duty to assist veterans. See Secretary’s Response
to October 2017 Court Order at 18-24. Congress has responded by creating various “lanes” for
appeals. https://benefits.va.gov/benefits/appeals.asp (last visited Apr. 24, 2018). Yet, a wider road
for veterans is only helpful if VA’s sluggish bureaucracy is no longer at the wheel. “[M]any
unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of
36
mmediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a
long one.” Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (1792) (Jay, C.J.). This favored class of
claimants should be certified; no further analysis is necessary.
VII.
I “willingly acknowledge that, 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.” Veterans for Common Sense v. Shinseki¸ 644
F.3d 845, 850-51 (9th Cir. 2011) (Reinhardt, J) (emphasis added), opinion vacated on reh’g en
banc, 678 F.3d 1013, (9th Cir. 2012). On average, it takes VA 1,094 days just to certify and docket
an appeal, and more than 5 ½ years to adjudicate a claim after an NOD is filed. See Martin v.
O’Rourke, 891 F.3d 1338, 1350 (Fed. Cir. 2018) (Moore, J., concurring). This is unconscionable.
Not every veteran can afford to hire an attorney to file a petition for a writ of mandamus on his or
her behalf. See id. Here, the only way to remedy systemic delay is to certify the class of affected
veterans and to issue a writ granting the petitioner’s requested relief because ultimately the delay
at VA has amounted to the Secretary’s refusal to act on the petitioners’ claims. United States ex rel.
Miller v. Raum, 135 U.S. 200, 204 (1890) (Bradley, J.) (“[W]hen such officers refuse to act at all
in a case in which the law requires them to do so . . . a mandamus lies to compel them to act or to
perform such ministerial duty.”). “Given Congress’s understandable decision to place a thumb on
the scale in the veteran’s favor,” Shinseki v. Sanders, 556 U.S. 396, 416 (2009) (Souter, J,
dissenting), there should be no question that the interest of these worthy claimants outweighs that
of the Government, see Mathews v. Eldridge, 424 U.S. 319 (1976) (Powell, J.), and this deprivation
affecting hundreds of thousands of veterans violates of due process. U.S. CONST. amend. V.
VIII.
In Brown v. Plata, the Supreme Court reviewed a three-judge panel’s order that the State
of California reduce its prison population from almost 200% of design capacity to 137.5%. 563
U.S. 493 (2011) (Kennedy, J.). The panel had consolidated two separate class actions challenging
prisoners’ inability to access adequate medical care; Coleman v. Brown involved a class of
prisoners with serious mental disorders and Plata involved a class of prisoners with serious
medical conditions. Id. at 503-04, 506-07. The district court in Coleman appointed a special master
to oversee the development and implementation of a remedial plan; 12 years after his appointment,
the special master reported that the state of mental health care was deteriorating because of prison
population increases. Id. at 506-07. After California conceded that its health care failing violated
its prisoners’ Eighth Amendment rights, the district court in Plata ordered a remedial injunction,
and when California failed to comply, appointed a receiver to oversee implementation; the receiver
also reported that overcrowding prevented improvement in prison health care. Id. at 507. A threejudge
panel was convened to oversee the consolidated cases and the panel ordered California to
formulate a plan to reduce its prison population, submit its plan to the panel for approval, and
implement the approved plan. Id. at 509-10. The Court declared that Federal courts “must not
shrink from their obligation to ‘enforce the constitutional rights of all persons.'” Id. at 511 (quoting
Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)). It upheld the court-mandated prison
37
population reduction as “necessary to remedy the violation of prisoners’ constitutional rights.” Id.
at 502.
The point here is that where broad institutional problems impede constitutional rights,
courts have stepped in to command broad remedies. See, e.g., Id. at 502; Blankenship, 587 F.2d at
336 (ordering the Secretary of HEW to promulgate rules and regulations); Henderson v. Graddick,
641 F.Supp. 1192 (M.D. Ala. 1986) (per curiam) (behavior by the State’s attorney general affecting
gubernatorial primary elections justified the court ordering a new election). Here, the Court had
an opportunity to address the entirely indefensible program of systemic and systematic VA delay.
The Court’s decision to limit class certification to those attacking a “specific practice or policy”
means that the Court may treat individual examples of delay without even trying to remedy the
fundamental problem–programmatic delay.
Therefore, I would appoint recall judges from this Court as special masters to ensure
compliance with the Court’s holding, beginning with oversight of Congress’s recently enacted
Veterans Appeals Improvement and Modernization Act of 2017, 115 Pub. L. No. 55, 131 Stat.
1105 (Aug. 23, 2017). Appointing recall judges would allow the Court to minimize additional
expenditures. See 38 U.S.C. § 7296(c). I would provide notice to all affected veterans through
publication on VA.gov and require immediate mailings to veterans to their addresses listed with
VA. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J) (notice
is constitutionally sufficient if it is “reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections”). I would then allow VA and representatives of the class of veterans to attempt to reach
a settlement on the maximum time VA has to adjudicate the claims of the class members; the Court
would only provide a time limit in the event the parties could not come to an agreement. While I
believe that this would be the least intrusive means of remedying the constitutional violation, see,
e.g., 18 U.S.C. § 3626, I would not rule out the possibility of creating a receivership if VA fails to
comply with these necessary time constraints. See Plata, 563 U.S. at 516 (“When a Court attempts
to remedy an entrenched constitutional violation through reform of a complex institution . . . it
may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing
remedial efforts.”).
IX.
I agree with Justice Brennan, that “[d]issent for its own sake has no value . . . . However,
where significant and deeply held disagreement exists, members of the Court have a responsibility
to articulate it. . . . Unanimity is not in and of itself a judicial virtue. . . . Judges have no power to
declare law. Courts derive legal principles and have a duty to explain why and how a given rule
has come to be. . . . [Judges] are forced by a dissent to reconsider the fundamental questions and
rethink the result . . . . In my judgment. . . the unique interpretive role of [our Court] with respect
to the Constitution [and our authority] demands some flexibility with respect to the call of stare
decisis. . . . [We should not be] captive to the anachronistic view of long-gone generations. . . . The
right to dissent is one of the great and cherished freedoms by reasons of the excellent accident of
our American births.” William J. Brennan, In Defense of Dissents, 37 HASTINGS L.J. 427, 427-35
(1985) (emphasis in original).
For all these reasons, I respectfully dissent.

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