An Army of Many: Veterans’ Benefits Class Actions in the U.S. Court of Appeals for Veterans Claims

An Army of Many: Veterans’ Benefits Class Actions in the U.S. Court of Appeals for Veterans Claims

Legal Sidebari

An Army of Many: Veterans’ Benefits Class
Actions in the U.S. Court of Appeals for
Veterans Claims
Updated December 11, 2019
Update 12/11/2019: On December 6, 2019, the U.S. Court of Appeals for Veterans Claims issued a
decision in Skaar v. Wilkie certifying a class action in an appeal of a Board of Veterans’ Appeals decision
regarding disability compensation based on in-service exposure to ionizing radiation. The majority
reasoned that, “absent any express indication from either Congress or the [U.S. Court of Appeals for the]
Federal Circuit” that the court lacked the authority to do so, it would employ class action procedures in
appeals. The certified class includes veterans whose claims have been denied by the U.S. Department of
Veterans Affairs (VA); veterans whose claims are pending before VA; and veterans who have not yet filed
VA claims. One judge dissented in part, arguing that the majority improperly included veterans who had
not yet filed claims, while excluding other veterans who could no longer appeal previously denied claims.
Three judges dissented in full, arguing that the court exceeded its jurisdiction and “seized more power
than Congress allotted to it with unsound legal innovations.” VA will likely appeal this decision to the
Federal Circuit.
The original post from December 3, 2019, is below. A more detailed update of this Sidebar will occur if
the Federal Circuit takes action in Skaar or another case concerning the CAVC’s class-action
jurisdiction.
In September, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a decision in Wolfe v. Wilkie
requiring the U.S. Department of Veterans Affairs (VA) to readjudicate the claims of a group of veterans
seeking reimbursement from VA for emergency medical care at non-VA hospitals—claims that potentially
total billions of dollars. Wolfe is the most recent in a line of decisions beginning with Monk v. Shulkin in
2017, in which the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the CAVC has
the authority to consider class actions. Since then, the CAVC has addressed class action motions on an ad
hoc basis while developing formal class action procedures. To date, the CAVC has certified two classes—
in Wolfe and Godsey v. Wilkie.
These cases require the CAVC to break new legal ground to develop class action procedures suited to that
court. More tangibly, these decisions may require VA to reallocate its resources to process affected claims
that could result in billions of dollars in awards. This Sidebar (1) briefly introduces class actions and the
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CAVC; (2) examines the history and scope of the CAVC’s emerging class action authority; and (3)
discusses several issues for Congress related to that power.
Background
What Are Class Actions?
Class actions have long served as procedural tools allowing courts to resolve large numbers of similar
individual disputes at once, rather than in separate cases. When members of a large group (the “class”)
have disputes with the same defendant that involve common questions of law or fact, a single member of
the class (the “class representative” or “named plaintiff”) can potentially sue the defendant not only on the
individual member’s own behalf, but also on behalf of the other class members to resolve those common
questions. If the proposed class action satisfies various prerequisites, the court will “certify” the class, and
the case proceeds as a class action. The named plaintiff represents the other class members, who do not
actively participate in the litigation, though the outcome of the case can affect the legal rights of the entire
class.
In the federal district courts, Federal Rule of Civil Procedure 23 (Rule 23) governs the class action
process. (For more detail on Rule 23 class actions in the district courts, see CRS Report R45159, Class
Action Lawsuits: A Legal Overview for the 115th Congress, by Kevin M. Lewis and Wilson C. Freeman.)
The district courts, using Rule 23 class action procedures, have heard several class actions related to
veterans’ benefits, with issues ranging from whether VA discriminated against conscientious objectors by
denying them educational benefits to whether veterans were entitled to monetary damages arising from
the loss of a VA laptop containing their personal information. In Nehmer v. Department of Veterans
Affairs, for example, a group of veterans successfully challenged VA’s implementation of the Veterans’
Dioxin and Radiation Exposure Compensation Standards Act, which authorized VA to award benefits for
certain disabilities (including several types of cancer) caused by exposure to Agent Orange. In another
case, National Association of Radiation Survivors v. Derwinski, plaintiffs brought a class action
challenging a $10 statutory cap on the amount an attorney could charge for representing a veteran before
VA. (The veterans lost, but Congress later repealed the $10 limit.)
What is the CAVC?
Although veterans have used class actions in the federal district courts to challenge VA policy since at
least 1974, the CAVC—the court with exclusive jurisdiction over VA benefits determinations—
historically has not employed class action procedures. The reasons for this stem from the CAVC’s
jurisdiction and its early judges’ understanding of the court’s powers.
The CAVC is a specialized federal court created by the Veterans’ Judicial Review Act of 1988. (For more
discussion of the CAVC and its jurisdiction, see CRS In Focus IF11365, U.S. Court of Appeals for
Veterans Claims: A Brief Introduction, by Jonathan M. Gaffney.) Because it is not a district court, the
CAVC is not bound by the Federal Rules of Civil Procedure. Instead, it has statutory authority under 38
U.S.C. § 7264 to prescribe its own rules of practice and procedure.
The CAVC has exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals (BVA), VA’s
top-level administrative tribunal, generally involving entitlement to veterans’ benefits. The CAVC also
has authority under the All Writs Act to issue writs—special types of court orders—in aid of its
prospective jurisdiction. The CAVC uses its writ powers to “compel action of the Secretary [of Veterans
Affairs] unlawfully withheld or unreasonably delayed.” Although the CAVC uses similar internal
procedures to decide appeals and petitions, the two types of cases address very different questions.
Appeals of BVA decisions require the CAVC to address the merits of a benefits claim—that is, whether
the BVA correctly denied entitlement to benefits. In contrast, petitions for writs cannot address the merits

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of a claim; instead, the CAVC looks to whether VA is taking the appropriate steps to decide pending
claims without unreasonable delay.
Until recently, the CAVC did not consider class actions. In 1991, the CAVC heard two cases—Harrison v.
Derwinski and Lefkowitz v. Derwinski—in which the appellants asked the court to create class action
procedures. In these two opinions, the CAVC held that it would not consider class actions for three
reasons: (1) it lacked the power to do so; (2) a class action procedure in an appellate court would be
“highly unmanageable”; and (3) the court’s precedential decisions made class action procedures
unnecessary because those decisions were binding on VA in all pending and future cases. The CAVC
based its conclusion that it lacked authority to consider class actions on three statutes:
 38 U.S.C. § 7252 gives the CAVC exclusive jurisdiction to review BVA decisions but
does not otherwise define the court’s jurisdiction.
 38 U.S.C. § 7261(c) prohibits the CAVC from conducting “trial[s] de novo” on the
Secretary’s or BVA’s factual findings. Essentially, the CAVC cannot decide, in the first
instance, whether a veteran is entitled to benefits; it can only review the BVA’s decision
to award or deny benefits.
 38 U.S.C. § 7266(a) requires a person “adversely affected” by a BVA decision to file a
notice of appeal (NOA) with the CAVC to obtain review. Unless a claimant files an NOA,
the CAVC lacks jurisdiction to review the BVA decision.
Harrison and Lefkowitz remained settled law until April 2017, when the Federal Circuit issued its
decision in Monk.
Monk v. Shulkin
Conley F. Monk, Jr., served in the U.S. Marine Corps between 1968 and 1970. He received an other-than-
honorable discharge in lieu of a court-martial. In 2012, Mr. Monk filed a claim for VA disability benefits
for post-traumatic stress disorder. VA denied his claim because Mr. Monk’s other-than-honorable
discharge barred him from receiving VA benefits. Mr. Monk appealed to the BVA. Although VA took
steps to develop Mr. Monk’s case, including providing him with a hearing, the BVA had not decided Mr.
Monk’s appeal as of April 2015.
Mr. Monk then filed a petition for extraordinary relief, requesting that the CAVC order the BVA to decide
his appeal. Mr. Monk also sought aggregate relief for himself and all “similarly situated veterans” asking
the CAVC to order VA to promptly decide any appeal that had been pending for more than one year. The
CAVC denied Mr. Monk’s request for aggregate action, concluding that, under Harrison and Lefkowitz, it
lacked authority to consider class actions and that, “in the absence of such authority, no other arguments
matter.” The CAVC also denied Mr. Monk’s petition for individual relief, reasoning that he had not shown
that BVA’s delay in deciding his case warranted extraordinary relief. Mr. Monk appealed both decisions
to the Federal Circuit.
The Federal Circuit reversed the CAVC’s decisions, holding that the CAVC had authority to certify and
adjudicate class action cases. The court provided three reasons for its conclusion. First, it explained that
the All Writs Act “unquestionably applies” in the CAVC and “has provided authority to aggregate cases in
various contexts.” Second, the Federal Circuit held that the CAVC’s broad authority to prescribe its rules
of practice and procedure allowed the CAVC to create procedures for class actions or other methods of
aggregation. Third, the Federal Circuit reasoned that there was “no persuasive indication that Congress
intended to remove class action protection for veterans” when it created the CAVC. Accordingly, the
Federal Circuit reversed the CAVC’s holding that it could not consider class actions, and remanded the
case for the court to address both Mr. Monk’s class action motion and his individual petition for relief.

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The Federal Circuit’s decision created a new way for veterans to use class actions to challenge VA
decisions. Before Congress created the CAVC, no federal court could review VA decisions regarding “the
provision of benefits.” As a result, veterans’ class actions in the district courts could address only general
challenges to the constitutionality of statutes—plaintiffs could not challenge statutes or regulations as
applied to individual veterans’ cases. The federal courts of appeals are split on whether, after the creation
of the CAVC, district courts retain the jurisdiction to decide these types of constitutional challenges or
whether claimants must bring such challenges in the CAVC. A majority of the courts to consider the
question agree that, although the CAVC may now decide constitutional challenges to VA statutes, the
district courts may continue to do so. But the CAVC has the unique ability to review VA decisions
affecting the provision of benefits. Claimants can therefore bring class actions in the CAVC that they
could not bring in the federal district courts—namely, challenges to VA’s decisions to award or deny
benefits and to VA’s processing of those cases.
After the Federal Circuit remanded Monk, the CAVC reconsidered whether to grant Mr. Monk’s motion
for class certification. In a plurality opinion with several concurring opinions, a majority of judges agreed
that the CAVC would use class action procedures in appropriate cases arising from petitions. The court
“anticipate[d] that, at some point, it [would] adopt a rule on aggregate procedures that is appropriate.”
Until it adopts its own rules, the CAVC has elected to use Rule 23 as a “guide” for its proceedings.
Applying Rule 23, an evenly divided CAVC denied Mr. Monk’s motion for class certification. Mr. Monk
appealed the CAVC’s denial of his class certification motion to the Federal Circuit, which heard oral
arguments in his case in early December.
Veteran Class Actions After Monk
Since the Federal Circuit’s Monk decision, the CAVC has received numerous class certification motions
and has decided seven, granting two such motions. sTable 1 summarizes these decisions.
Table 1. CAVC Disposition of Class Certification Motions
Case
Date of Decision
Proposed Class
Result
Rosinski v. Shulkin
January 26, 2018
Attorneys seeking access from VA to their
Denied
clients’ draft VA rating decisions
Monk v. Wilkie
August 23, 2018
VA claimants who had waited more than
Denied
12 months for a VA decision after an initial
appeal
Thompson v. Wilkie
October 24, 2018
VA claimants who “faced significant
Denied
financial or medical hardship” and had
waited more than 12 months for a VA
decision after an initial appeal
Prewitt v. Wilkie
November 30, 2018
Veterans who did not receive notices of
Denied
appellate rights in VA decisions issued
between January 1980 and February 1983
Godsey v. Wilkie
June 13, 2019
VA claimants who had waited more than
Granted; VA ordered to act
18 months for VA to certify their appeals
on all class members’ claims
to the BVA
within 120 days
Ward v. Wilkie
June 14, 2019
Veterans who “are or will be subject to”
Denied
VA’s erroneous interpretation of whether
a disability has worsened

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Case
Date of Decision
Proposed Class
Result
Wolfe v. Wilkie
September 9, 2019
Claimants whose reimbursement claims for Granted; all VA denials of
non-VA emergency care were denied (or
class members’ claims
will be denied) because the expenses were
invalidated; VA ordered to
deductible or coinsurance payments
develop a plan to adjudicate
the claims
Several other class certification motions remain pending, including motions to certify classes arising out
of appeals, rather than petitions.
Although the CAVC only recently decided Godsey and Wolfe, some effects of those decisions have
already emerged. Since Godsey, VA has processed 2,544 cases that met the requirements of the certified
class, either forwarding those cases to the BVA for a decision or ordering additional evidentiary
development. And VA estimates that nearly 600,000 veterans may be affected by Wolfe, which could
potentially require VA to reimburse billions of dollars of expenses. Although VA has started to notify the
veterans affected by Wolfe, the Secretary has asked the CAVC to suspend its order so that VA can appeal
the decision, asserting that full compliance with the order would unnecessarily strain VA’s resources.
Congressional Considerations
Because the CAVC’s class action authority is still taking shape, Congress could guide the CAVC as it
develops its procedures. Congress could, for example, clarify the court’s jurisdiction and authority as they
relate to class actions or develop other ways to aggregate VA benefits claims.
CAVC Authority
In Monk, the Federal Circuit relied on the CAVC’s All Writs Act authority, the lack of contrary statutory
authority, and the CAVC’s power to create its own rules to hold that the CAVC could certify classes in
cases arising out of petitions for writs. The two classes the CAVC has certified to date also arose from
petitions and concerned VA’s alleged failure to take certain actions. Neither court has decided whether the
CAVC has authority to certify classes in cases arising out of appeals of BVA decisions, which would
address the merits—rather than VA’s processing—of veterans’ benefits claims (though at least one such
case is pending before the CAVC). Nor has either court discussed who could be a member of such a class.
Likewise, the CAVC has not addressed whether the prudential reasons it gave in Harrison and Lefkowitz
for not certifying classes in appeals—that classes would be unmanageable and unnecessary because the
CAVC’s decisions are precedential—still counsel against doing so.
Congress could help answer these questions in several ways. First, because the Federal Circuit’s decision
in Monk was based, in part, on the lack of any contrary congressional intent, Congress could explicitly
authorize or prohibit the CAVC from considering class actions, either generally or in certain cases (e.g.,
only in petitions). Likewise, Congress could clarify whether the CAVC could certify a class including
members without final BVA decisions (over whom the CAVC would ordinarily lack jurisdiction).
Agency Aggregation
Besides defining the CAVC’s class action authority, Congress could create—or authorize VA to develop—
a mechanism for addressing VA benefit claims on an aggregate basis. Allowing VA to aggregate claims at
the agency level could sidestep some of the questions about the CAVC’s jurisdiction and authority.
Aggregation could also help VA decide common questions of fact across a large number of claims,
potentially saving agency resources. Other federal agencies, including the Equal Employment
Opportunity Commission, the Merit Systems Protection Board, and the Consumer Financial Protection
Bureau, already have such aggregate procedures in place.

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Author Information

Jonathan M. Gaffney

Legislative Attorney

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