Veteranclaims’s Blog

March 17, 2021

Panel Application; Skaar v. Wilkie, 32 Vet. App. 156, 167 (2019) (en banc).; “[t]he Court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.”1 This rule mirrors its analogue from Federal Rule of Civil Procedure 23.2 And, as before, we will rely on the Federal Rule and the surrounding guidance to inform our analysis;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-4638
JEREMY E. FURTICK, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, ALLEN, and LAURER, Judges.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
The Court trusts that the parties are familiar with the facts and procedural history of this case. Most recently, the Court granted the Secretary’s motion to stay proceedings pending resolution of his motion to dismiss appellant’s Request for Class Certification and Class Action (RCA). Besides opposing the Secretary’s motion to dismiss, appellant also asks the Court to appoint his counsel as interim class counsel. As the Court explains, we will deny this request.
We recently adopted rules that govern class action litigation before this Court. Under these rules, “[t]he Court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.”1 This rule mirrors its analogue from Federal Rule of Civil Procedure 23.2 And, as before, we will rely on the Federal Rule and the surrounding guidance to inform our analysis.3
As the Advisory Committee’s Notes explain, sometimes “there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate.” 4 Thus, courts may “designate interim counsel to act on behalf of the putative class before the certification decision is made.”5 At the same time, “[f]ailure to make the formal designation does not prevent the attorney who filed the action from proceeding in it. Whether or not formally designated interim counsel, an
1 U.S. VET. APP. R. 23(f)(3).
2 FED. R. CIV. P. 23(g)(3).
3 Skaar v. Wilkie, 32 Vet. App. 156, 167 (2019) (en banc).
4 FED. R. CIV. P. 23 Advisory Committee’s Note.
5 Id.
2
attorney who acts on behalf of the class before certification must act in the best interests of the
class as a whole.”6
This is why, when “the lawyer who filed the suit is likely to be the only lawyer seeking
appointment as class counsel, appointing interim class counsel may be unnecessary. ”7 But when
“there are a number of overlapping, duplicative, or competing suits pending in other courts, and
some or all of those suits may be consolidated, a number of lawyers may compete for class counsel
appointment.”8 Put another way, “those cases in which interim counsel is appointed are typically
those in which a large number of putative class actions have been consolidated or are otherwise
pending before a single court.”9 This not what we have here.
For one thing, appellant is the only party seeking to litigate the merits on behalf of a
putative class. No one is competing with him. Nor has the Court consolidated this matter with
other appeals, so there should be no confusion about whether counsel for appellant or other lawyers
will litigate this matter. True, appellant has multiple attorneys. But he wants all of them to be
interim class counsel. Thus, granting his motion would not shrink the list of attorneys responsible
for the putative class. In short, there is no need to appoint interim class counsel.
Upon consideration of the above, it is
ORDERED that appellant’s February 8, 2021, motion to appoint interim class counsel is
DENIED.
DATED: February 26, 2021 PER CURIAM.
Copies to:
Kenneth H. Dojaquez, Esq.
VA General Counsel (027)
6 Id.
7 Manual for Complex Litigation, Fourth, § 21.11.
8 Id.
9 White v. TransUnion, LLC, 239 F.R.D. 681, 683 (C.D. Cal. 2006); see also Huynh v. Quora, Inc., No. 18-
CV-07597-BLF, 2019 WL 11502874, at *2 (N.D. Cal. Apr. 11, 2019) (declining to appoint class counsel when “[t]he
parties have not identified any other related lawsuits or the potential for additional attorneys to enter the fray.”).

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