Two cases being argued next week attracted amicus briefs. One is Monk v. Wilkie, a case in which Conley F. Monk, Jr. and eight other 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 2018, the Court of Veterans Appeals denied class certification in an equally divided 4-4 en banc decision. According to Monk, however, the CAVC misinterpreted Federal Rule of Civil Procedure 23(a) when it did so.
In its opening brief, Monk highlights that “the nine Appellants in this case have collectively spent 17,782 days waiting for decisions from the VA appeals system” as of the filing date of its brief, which “is nearly fifty years of waiting.” Monk points out that the Federal Circuit has held that the “CAVC has the power to aggregate claims and specifically emphasized the need for a class action vehicle to address systemic delay in veterans appeals.” Monk then argues that the CAVC’s interpretation of Rule 23 “undermines that decision and effectively forecloses aggregate relief for veterans.”
In particular, Monk contends that the CAVC “improperly denied certification . . . because the class had not identified an offending VA policy that caused its unconscionable delays.” According to Monk, “such proof is not required to prevail on the merits of class members’ claims” and “should not be a barrier to class treatment.” Monk argues that the proposed class satisfies the commonality requirement or Rule 23 because the proposed class includes veterans “who have waited at least one year from initiating their appeals” and their claims “pose a common question . . . capable of a common answer” under Telecommunications Research & Action Center v. Federal Communications Commission, 750 F.2d 70 (D.C. Cir. 1984). Monk also argues that the class shares due process claims that present a common question. Finally, he contends that the remedy sought for the class, “an injunction that the Secretary adjudicate all appeals within one year of an applicant’s [Notice of Disagreement,” would apply to all class members.
The government’s response brief argues that Monk “intentionally proposed certification of a broad and diverse class” that included “up to 470,000 claimants.” The government contends that the “reasonableness or constitutionality of the appeal-processing time for all these different claimants . . . is not susceptible to one ‘common answer’ across the entire class.” Notably, the government states that “[t]his case is not about whether the VA appeal system predating the [Veterans Appeals Improvement and Modernization Act of 2017] is broken (it is), or whether the Veterans Court has the authority to entertain class actions (it does).” Rather, it says, “[t]he sole issue on appeal is whether the Veterans Court faithfully applied” the standard for commonality adopted by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
In its reply brief, Monk argues that “the plurality incorrectly interpreted the Wal-Mart standard by requiring an examination of the underlying reasons for the VA’s delay.” Monk also explains that if the Federal Circuit were to affirm the plurality’s interpretation, then it would “contravene binding precedent and effectively foreclose class certification for veterans seeking to challenge system-wide failure by the VA.”
Notably, the case attracted four amicus briefs, all in favor of Monk.
One amicus brief was filed by seventeen law professors. In their brief, the professors seek to “address a number of questions that have been raised about the rules governing class actions in cases where plaintiffs seek to enjoin systemwide government practices.” In particular, they argue “courts routinely hold that common questions exist in injunctive relief class action challenges to government policies and practices”; “certifying class actions in such cases is consistent with historical practice”; and “due process challenges lend themselves to class certification because they often raise common questions about how system-wide hearing procedures impact a group of people who depend on them for relief.”
A second amicus brief was filed by the National Veterans Legal Services Program. NVLSP makes three arguments: that the “Veterans Court’s commonality determination rested on its misinterpretation of the unreasonable delay standard to require the court to examine the VA’s reason for the delay”; that the Veterans Court “misinterpreted the commonality requirement” of Rule 23(a); and that the Veterans Court’s decision “is contrary to important public policies favoring access to class actions to remedy the VA’s systemic delay.”
The third amicus brief was filed by two former general counsels of the VA, Will A. Gunn and Mary Lou Keener. They maintain that “[t]he CAVC decision formally rested on a strained reading of the commonality requirement of Rule 23, but it seems to have been driven by the four judges’ views of the manageability of the proposed class.” In their view, however, “profound litigation-management difficulties are presented by the huge backlog of veterans’ appeals—not by a proposed class that would help clear that backlog.”
The fourth and final amicus brief was filed by the National Law School Veterans Clinic Consortium. The Consortium’s brief “first focuses on the history and purpose of subsection (b)(2) of Rule 23,” which the Consortium contends “was specifically added in 1966 to facilitate class actions where systemic failures are at issue.” Then, the brief discusses “key tenets in federal veterans benefits law” that the Consortium believes “should inform and guide the fact finder (here, the Veterans Court) in determining whether Rule 23 elements are met.” Finally, the brief argues that “other procedures, including precedential opinions, do not provide the relief our nation’s veterans need and deserve.”