Argument Recap

The only case argued this week at the Federal Circuit that attracted an amicus brief was Monk v. Wilkie, a case in which nine veterans sought class certification to assert claims of unreasonable system-wide delay by the Board of Veterans Appeals in deciding appeals of denials of veterans’ claims. In our argument preview, we highlighted how the case attracted four amicus briefs, all in favor of the veterans, whose request for class certification was denied by an evenly divided en banc Court of Veterans Appeals. On Monday, the parties presented oral arguments to a panel of Federal Circuit including Judges Newman, Lourie, and Reyna. Here is our argument recap.

A Yale law student, Arjun Mody, presented the appellants’ opening argument. After acknowledging the presence of his client, he could barely complete his first sentence, “we are here on behalf of the 470,000 disabled veterans who will wait on average six years for a decision from the Board of Veterans Appeals,” before Judge Lourie interjected. “That’s your problem, isn’t it?” Judge Lourie asked. “Where is the commonality among all 470,000 people?” Mody responded that “the commonality is that all of these veterans are mired in a system of systemic delay.” Judge Lourie, however, did not appear persuaded. “But is the specific cause of the delay common to all of them?” he asked. Mody maintained that “the cause of the delay does not matter” and that “at a certain point delay becomes per se unreasonable.” Judge Lourie continued to challenge this theory of the case, however. “But the remedy has to relate to the cause, doesn’t it?” No, argued Mody. Raising a potential answer to Judge Lourie’s question, Judge Reyna asked whether “it enough to look at the process as a whole.” Agreeing that “there is no way to escape the delay,” Mody suggested that every veteran must effectively “get in line” to await resolution of his or her appeal. Indeed, Mody said, a recent study showed “one in fourteen veterans die waiting for a decision on their appeal.” While highlighting these stark facts, the focus of Mody’s argument remained on the legal requirement of commonality found lacking by the Court of Veterans Appeals. Likewise, Judge Lourie’s focus remained on a lack of commonality posing a problem with respect to any remedy: “In the absence of some specificity, where is the remedy?” Mody responded that the plaintiffs’ request in terms of remedy is that all of the appeals be decided within a specific time period, “a single injunction that would apply to every single class member.”

Martin F. Hockey, Jr. of the Department of Justice presented the responsive argument on behalf of the Secretary of Veterans Affairs. Before he could present any argument, however, Judge Newman asked, “Is there any consideration being given to remedying the situation that is being presented to us?” Hockey responded, “Yes, Your Honor. . . . Congress is actively engaged in this. The Appeals Modernization Act that [Congress] passed two years ago is designed to address this very issue.” He went on: “Frankly, in the words of the Supreme Court . . . when they were dealing with similar delays in the Social Security process, what this court needs to keep in mind when determining whether some sort of class action relief is appropriate, is that this isn’t something that people have been ignoring.” Judge Lourie, however, pointed out that “what the VA and Congress may be doing doesn’t provide the answer to whether they have a proper class action.” After agreeing, Hockey argued on the merits of the question presented that the relevant precedent requires a “common, one stroke solution.” He conceded that “a more focused class” would be appropriate for class certification, and referred to the fact that after this case was decided there have been other class certifications. Hockey argued, moreover, that in his view “the majority of the 470,000 veterans” would not want an injunction requiring claims to be processed within one year, because it would deny many veterans with procedure that the veterans could have used to present evidence and that merit delay. Hockey also emphasized that the Federal Circuit reviews the decision below for abuse of discretion. Judge Reyna, however, wondered whether that standard of review is accurate if the issue for resolution on appeal is a question of law.

Lynn Neuner argued on behalf of the appellants in rebuttal. She contended that “the core question” for the Federal Circuit is “did the Veterans Court make a legal error in construing the commonality requirement under Rule 23.” In response to the continued concern with a remedy that fits the entire proposed class, she argued that “if one year is too short, four years is surely too long,” but that it is up to the discretion of the lower court, based on the parties’ submissions, to fashion an appropriate remedy to apply to the entire class. On remand, she argued, the veterans may suggest a longer period compared to the one year they have already suggested.

This case is obviously important for the veterans whose appeals have not been resolved by the Board of Veterans Appeals in a timely fashion. And they certainly have bad facts in their favor. But the appeal will be decided on the law, and in particular whether the veterans’ argument about the legal requirement of commonality stretches that limitation on class certification to its breaking point. We will look for the panel’s answer to that question, and report on it as soon as the panel decides the case.