Vets Win Rare Class Action Status In Suit Over Benefit Delays

By Kevin Penton | June 16, 2019, 8:02 PM EDT

Veterans who seek to appeal the U.S. Department of Veterans Affairs' denial of their benefits claims often fall into a multiyear black hole of bureaucratic inaction, waiting an average of three years for the agency to simply move their case forward, let alone rule on it.

A three-judge panel of the U.S. Court of Appeals for Veterans Claims sought Thursday to seal that hole, ordering the VA to process thousands of outstanding claims within 120 days, the first time the court has certified a case as a class action. Plaintiffs James A. Godsey Jr., Jeffery S. Henke, Thomas J. Marshall and Pamela Whitfield argue the delays violate their and other veterans' due process rights.

The court put aside promises by the agency that officials are working to remedy the issue, determining that it needed to take action on its own to assist veterans who have been waiting for years to hear whether their cases may proceed to the Board of Veterans' Appeals.

"The secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so," the court wrote in an unsigned opinion, referring to VA Secretary Robert Wilkie. "Simply put: The time has come for judicial intervention."

The four veterans filed the case in November 2017, contending that they had each been waiting at least three years for the VA to move forward their appeals of their benefit denials so that the board could simply hear their arguments, according to the opinion.

Under the VA's system, after a veteran appeals the denial of a claim, an official referred to as a decision review officer is tasked with ensuring that everything in a case file is ready to be "certified" so the board may review it, according to court documents.

Officers may either certify the case outright or determine that it needs more information, such as outstanding evidence, before it may be certified. In 2017, this stage of the process took an average of 773 days, according to Thursday's order.

Once the case has been certified, the officer still has to review it again, before passing it along. In 2017, this step took an average of 321 additional days, according to the order. Once the case makes it past the decision review officer and to the board, officials there must "screen" it and formally place it on the docket.

The court held that the case challenging these procedures should move forward as a class action, using federal civil procedure rules to determine whether the case qualified. It punted on crafting its own rules for certifying cases as class actions, holding that the court had ruled last year that it could use the federal civil procedure rules in the interim.

Judge Coral W. Pietsch dissented, saying she's "deeply concerned" with the majority's decision to certify a class without having clear procedures in place.

"Although the Federal Circuit held that this court has the authority to certify a class or otherwise aggregate claims, I still question whether we should exercise that authority," Judge Pietsch wrote. "In refusing to entertain class actions, the court previously noted that a class action would be 'highly unmanageable' and, in the context of appeals, unnecessary given the binding effect of the court's precedential decisions. I remain convinced that certifying and managing a class at an appellate court will be troublesome."

The court majority said that while it would normally grant the VA "great deference" in how the agency is run, it felt compelled to issue the order, which it expects will require the VA to reorganize priorities and resources. The order specifically gives the agency 120 days to either certify cases or "affirmatively initiate any development or adjudication activities necessary for certification or resolution."

"Extraordinary circumstances call for extraordinary measures, and the secretary's longstanding failure to remedy the unreasonable delays in accomplishing pre-certification review, resulting in claimants waiting in line for years with no action being taken by VA, has compelled the court's intervention in this case," the court said.

VA officials could not be reached for comment on Friday. Should the government opt to appeal, the Federal Circuit would be the court to consider the matter.

Other cases had also been vying to be the first certified as a class action by the U.S. Court of Appeals for Veterans Claims, including a case alleging that VA policies limiting emergency medical care reimbursements to veterans violate the Emergency Care Fairness Act, a 2010 law that expanded veteran eligibility for emergency medical care reimbursements at non-VA hospitals.

Attorneys Ranganath Sudarshan, Benjamin C. Block, John Niles, Kathryn Cahoy, and Isaac Belfer and Christopher Higby of Covington & Burling LLP worked on the case, together with Barton F. Stichman of the National Veterans Legal Services Program.

The government stated during the case that the court's decision easily would affect thousands of veterans, Cahoy told Law360 on Friday. Veterans affected will not need to do anything themselves, as the order requires the government to move on their cases, Block said.

"We achieved a historic result that's going to work for everybody in the class," Block said. "It's a great precedent for all veterans."

--Editing by Jocelyn Allison.

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