Furtick: Class Actions and Predecision Hearings

Furtick v. McDonough, Case Number 20-4638, was decided August 25, 2021 and involves a proposed class action as to whether denial of a hearing by the AOJ is an appealable issue. 

The veteran filed a supplemental claim as to sleep apnea and requested a predecision hearing.  His request for a hearing was denied and he appealed to the Board, which found a denial of a hearing at the AOJ is not an appealable determination by the VA.  Id. at *1.  Instead, the Board stated that such an error could be raised in an appeal of a decision denying the benefit sought.  Id. at *2.

Ultimately a rating decision did deny service connection and the veteran subsequently filed an HLR discussing the lack of hearing.  As a result, the HLR acknowledged the veteran was entitled to a hearing and remanded the issue for one.  A hearing took place before this case was decided.

Before the Court, the veteran also sought to represent a class of all claimants who requested a hearing, which was denied.  Id. at *2.  As a result of the hearing being given, the VA sought to have the appeal dismissed.  Id. at *2.

The Court began by noting there is no longer a case or controversy as to Mr. Furtick and agreed dismissal of his individual appeal is appropriate.  Id. at *3.  As to the proposed class action, the Court noted an appeal can continued if an exception to mootness applies.  Id. at *3.  For this case, the Court assumed such an exception existed.  Id. at *3. 

The Court then explained its dismissal of the proposed class certification by saying:

“The problem for Mr. Furtick is that he and his purported class would not share the same relief at all given the Board's decision and the definition of the class Mr. Furtick seeks to represent. Our “jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed.”  This means that “when the Board has not rendered a decision on a particular issue, [this Court] has no jurisdiction to consider it under section 7252(a).”  And here, the Board has not decided whether a claimant is entitled to a predecisional hearing.

Instead, the Board decided that Mr. Furtick could not appeal the denial of a hearing as a stand-alone appellate claim. Thus, the Board dismissed his appeal without deciding whether he was entitled to a hearing. As a result, we would be limited to deciding whether a claimant has a right to appeal the AOJ’s denial of a hearing. If Mr. Furtick’s claim had continued, and had he prevailed on the merits of his appeal, we could order the Board to adjudicate his claim. In this hypothetical, if Mr. Furtick was also representing a class, we could enjoin the Board from refusing jurisdiction from claimants who want to appeal the AOJ’s denial of a hearing.”

Id. at *4.

This is an excellent example of the fact the Court views class actions with skepticism and will work hard to find a reasons to reject.  Here, they determined the proposed class and individual’s case were procedurally to dissimiliar.

Per Curium.

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