Godsey: At Last a Class Action Certified and Old Appeals Advanced

Godsey v. Wilkie, Case Number 17-4361, decided June 13, 2019 is the first Veteran Court decision that grants class certification in a case and goes further and grants some remedies.

This case sought class certification and dealt with delays in certifying cases to the Board.  Specifically,

In 2017, when the instant petition was filed, it took VA, on average, 773 days to certify a case to the Board after receiving a Substantive Appeal and an additional 321 days after that to transfer the appellate record. BOARD CHAIRMAN'S FISCAL YEAR 2017 ANNUAL REPORT (2017 BOARD ANNUAL REPORT) at 25, available at https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf.

The petitioners argue that taking nearly three years to complete these tasks is unreasonable and deprives them of their constitutional right to due process. They request, on behalf of themselves and a class of similarly situated claimants, that the Court compel the Secretary to expedite the appeals certification and transfer process.

Id. at *1.

First, the court is very careful to say this is an unusual case and “by deciding class certification and the merits of the underlying petition in a single order, it is not adopting a general policy or framework for deciding such matters concurrently in future cases. However, given the unique circumstances surrounding this case, particularly the nature of the alleged injury and the need for rapid remedial action, the Court has concluded that resolving both matters in a single order is appropriate here.”  Id. at 2.

Second, the VA tried to moot out these cases by either certifying the cases to the Board or granting benefits after the petition was filed.  However,

the Court concludes that, although the petitioners have now each had their cases resolved or certified to the Board, their petition is not moot because they presented a live case-or-controversy at the time that they filed their petition and the Secretary's conduct that they

challenged in the petition was so inherently transitory that it was capable of evading review. Having resolved the mootness dispute, we now move to the class certification issue.

Id. at *7.

Third, the Court made clear that Rule 23(a) of the Federal Rules of Civil Procedure would provide the framework for class certification.  It requires the party seeking class certification to demonstrate:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Id. at *8.

Regarding commonality, the Court determined difference could exist between various proposed class members and instead sua sponte (on its own without a motion) “narrow[ed] the class to include only those claimants who have been standing in line waiting more than 18 months since filing their Substantive Appeals.”  Id. at *9.  This narrowed class focused on the fact the pre-certification review occurs after a Form 9 (Substantive Appeal) is filed and results in the case being sent to a higher level employee (decision review officer or DRO) who reviews the case to determine whether it is ready to be certified.  “Pre-certification review is to entail verifying that all entries in the

electronic Veterans Appeals Control and Locator System (VACOLS) are correct and up-to-date, identifying whether relevant evidence has been obtained and that the duty to assist has otherwise been met, checking whether all relevant claims processing documents have been issued and included in the file, and ensuring that the necessary appeal documents are in the electronic Veterans Benefits Management System (VBMS). Id., §§ F.3.g-h. If, as a result of pre-certification review, the RO assesses that no further development or adjudication is necessary, the case is certified.”  Id. at *3.

Fourth, the Court reviewed the other factors and found class certification proper.

Fifth, the Court considered just granting a single precedential opinion as opposed to a class decision and noted:

Petitions alleging systemic delay are "best addressed in the class-action context, where the court could consider class-wide relief" that would inure to all similarly situated claimants. Moreover, deciding this petition as a class empowers the Court to monitor and enforce its order more easily and efficiently than would be possible through the filing of individual petitions seeking compliance in each claimant's case. In short, a class action decision is a more efficient and effective vehicle for resolving this case than a precedential decision focused on an individual veteran's case.

Id. at *12 (internal citations omitted).

Sixth, as to the merits, the Secretary admitted the petitioners had no adequate alternative means to obtain their requested relief, but argued they had not carried their burden of demonstrating entitlement to a writ. 

The Court first focused on whether the delay was so unreasonable as to qualify as a constitutional deprivation of property. Id. at *13.  It focused on the TRAC factors, which were explained in part by the Federal Circuit in Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018)are:

(1) The time agencies take to make decisions must be governed by a "rule of reason"; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court

should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

Id. at *14.

In Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018), the Federal Circuit had largely looked at these factors and determined:

The Federal Circuit began by explaining that the first TRAC factor—whether VA's decisionmaking process is governed by a rule of reason—"is considered to be the most important factor in some circuits." To analyze this factor, along with the "relate[d]" second factor, the absence of a specific congressional timetable for action, the Court

must look to the particular agency action delayed because it "is reasonable that more complex and substantive agency actions take longer than purely ministerial ones." The Court "may also consider whether the delays complained of are based on complete inaction by the VA, or whether the delays are due in part to the VA's statutory duty to assist a claimant in developing his or her case." In noting this consideration, the Federal Circuit specifically directed the Court to "consider whether delays are due to the agency's failure to perform certain ministerial tasks such as filling out the form certifying the appeal to the [Board] and docketing by the [Board]." The Federal Circuit opined, in a footnote, that they could conceive of "no reasonable explanation for the historic delays that have occurred during appeal certification . . . and during transfer to the [Board]," ultimately calling those delays "inexplicable."  Nevertheless, the Federal Circuit indicated that, due to the highly factual nature of the rule-of reason inquiry, there was "no reason to articulate a hard and fast rule with respect to the point in time at which a delay becomes unreasonable," reserving that case-specific determination for this Court.

Regarding the other TRAC factors, the Federal Circuit observed that the third factor would likely always weigh in a VA benefits claimant's favor because "[v]eterans' disability claims always involve human health and welfare." Id. Considerations relevant to the fourth factor—the effect of expediting delayed action on agency activities of a higher or competing priority—include VA's limited resources, the fact that the agency is in a better position than the courts to evaluate how to use those resources, and the effect of expediting action on other claimants, including any undesirable line-jumping. The Federal Circuit further explained that the fifth TRAC factor— the nature and extent of the interests prejudiced by delay—"incorporates an analysis of the effect of a delay on a particular veteran," meaning that the factor may weigh more heavily in favor of unreasonableness when "a particular veteran is wholly dependent on the requested

disability benefits," as opposed to a veteran who "has a sustainable source of income outside of the VA benefits system." Id. And the Federal Circuit declared that the final TRAC factor may weigh in favor of issuing a writ "even where there is no evidence of bad faith" on the part of VA.

Id. at *14-15 (internal citations omitted).

The Court summarized the petitioners assessment of the TRAC factors as:

that there is no rule of reason that would support a multi-year adjudication delay following the filing of a Substantive Appeal; the Secretary's failure to timely act on Substantive Appeals conflicts with VA's statutory mandate to decide appeals in docket order; that delay harms the health and human welfare of veterans and their dependents, who are a protected class of individuals; and there is no higher or competing agency priority that justifies such delay. The petitioners further argued that nothing in VAIMA would remedy the current delays in processing legacy appeals.

Id. at *15. The Court then reviewed the TRAC factors itself and regarding the first concluded:

We agree with the petitioners that the current time that it takes the Secretary to initiate precertification review after the filing of a Substantive Appeal is per se unreasonable under TRAC and Martin. Although the Court is cognizant of the number of Substantive Appeals filed each year and  the myriad other tasks that the ROs perform, there is simply no rule of reason that can justify a multiyear wait before an RO even looks at an appealed case to determine whether further development and/or adjudication is warranted before certifying and transferring a case to the Board. Such delays are particularly intolerable because they consist of nothing but waiting in line: no development, no adjudication, no action whatsoever on the part of VA.

Id. *15-16.

“Regarding the fourth TRAC factor, even though the Secretary contended at oral argument that expediting pre-certification review would have an adverse impact on agency activities of a higher or competing priority, he admitted at several points during the argument that VAIMA gives primacy to processing legacy appeals and that he has recently targeted for expedited processing precisely the types of cases involved in this class action.”  Id. at *16.

“And, although the second TRAC factor weighs in the Secretary's favor because Congress has previously declined to impose an appeal certification timeline on VA, that fact is not sufficient to overcome the aforementioned factors that emphatically demonstrate that the time the class members have waited for pre-certification review is unreasonable.”  Id. at *17.

The Court then concluded by stating:

The Secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so.…  Simply put: the time has come for judicial intervention.  Given the foregoing, and given the Secretary's earlier concession that the petitioners have no adequate alternative means to obtain the relief they seek, the Court is convinced that issuance of a writ is warranted in this case to ensure that the class

members receive timely pre-certification review of their appealed cases so that any necessary further development may occur or certification may proceed.

Id. at *17.

The Remedy

As a remedy, the Court ordered the Secretary to conduct pre-certification review of all cases that fit within the class definition, and within 120 days after the date of the

order, either (1) certify his or her case, or (2) affirmatively initiate any development or adjudication activities necessary for certification or resolution at the RO.  Id. at *18.

Judge Pietsch dissented, saying she would have denied class certification and the merits determination.  She began by writing “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.”  Id. at *19.  Frankly, I believe that sums up her dissent.  She does not support class actions at the Veterans Court because they are highly unmanageable and that appears to color her entire decision.  She states she would not have sua sponte narrowed the class and focuses on commonality problems with the class.  She then argues because Congress has not created clear appeal deadlines and the Secretary is working to resolve delays, she would allow the Secretary to attempt to resolve the delays. Id. at *19-20.

The decision was by Judge Bartley and Allen and published per curium, suggested they both had a hand in drafting it.  It will result in old Form 9s being worked within 120 days and either certified to the Board or new developments initiated.  I suspect the Board fears the avalanche coming their way and also that the VA might conduct much more development than usual with these older cases.  But, at least they will start moving again.  At any rate, at least two judges on the Veterans Court recognize the extreme delay in resolving cases has reached an unsustainable level and is creating real constitutional problems.

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