Last week, the Federal Circuit issued its opinion in Monk v. Wilkie, a veterans case we have been tracking because it attracted five amicus briefs. The panel comprised of Judges Newman, Lourie, and Reyna unanimously affirmed a decision by the Court of Appeals for Veterans Claims that the petitioners in this case did not meet the commonality requirement for class certification. Judge Newman wrote the opinion, and Judge Reyna provided additional views in a separate opinion. Here is a summary of the opinions.
In this case the Federal Circuit considered whether the Veterans Court erred in denying class certification to eight veterans who claimed commonality based on similar subjection to system-wide delays by the Board of Veterans Appeals in deciding denied veterans’ claims. The court also discussed the effects of the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), which was enacted while this case was pending in the Veterans Court.
Judge Newman wrote the opinion for the panel, which as mentioned affirmed the Veterans Court decision that the veterans in this case did not meet the commonality requirement for class certification. Judge Newman summarized the relevant facts as follows:
The Veterans Court . . . requested Petitioners to separate or limit the requested class action into issues that meet the “commonality” standard of Federal Rule of Civil Procedure 23(b)(2) . . . . Petitioners declined to limit the requested class action, stating that “systemic delay” exists in the VA claims system, and broad judicial remedy is required. The Veterans Court then denied the requested class certification, stating that “[t]he 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.” . . . While this case was pending in the Veterans Court . . . [l]egislation was enacted . . . called the Veterans Appeals Improvement and Modernization Act of 2017. We requested further briefing, and Petitioners, the government, and amicus curiae National Law School Veterans Clinic Consortium filed additional briefs.
The court first addressed the effects of the AMA on this case.
The court noted that the AMA was designed to change VA claim procedures in order to simplify the process and avoid major sources of delay. The petitioners and amici in this case argued that judicial intervention was required because the AMA does not apply to over 200,000 legacy appeals that are still pending. The government, however, provided the option for legacy claimants to “opt in” to the AMA system.
After considering both sides’s arguments, the court decided that when Congress crafts a comprehensive remedial structure, “that structure warrants evaluation in practice, before judicial intervention should be contemplated.” As a result, the court held that judicial intervention in this case was not warranted because the AMA has not been in practice long enough to be evaluated.
The court then turned to the ultimate issue in this case: whether the Veterans Court erred in denying the veterans class certification.
The court agreed with the Veterans Court’s holding that commonality “requires that a proposed class action presents a common question that is capable of a common legal answer.” The court noted that the petitioners did not respond to the Veterans Court’s request for further definition in search of commonality or elaborate on any remedy other than judicial intervention by the imposition of a one-year deadline.
In sum, the court held that the petitioners did not demonstrate any error by the Veterans Court or show any reasonable basis for remand. Thus, the court affirmed the decision of the Veterans Court denying class certification.
Notably, while he joined in the majority opinion, Judge Reyna wrote a separate opinion to provide additional views. In it, he clarified that, while commonality was not met here, class certification remains a viable option for legacy claimants upon a showing a commonality. He urged that “opting in” to the AMA was one remedy available to legacy claimants seeking swift relief, but he maintained that the AMA does not eliminate the availability of class certification to those claimants.