Conley F. Monk, Jr. v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-1280

CONLEY F. MONK, JR., ET AL., PETITIONERS,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before DAVIS, Chief Judge, and SCHOELEN, PIETSCH, BARTLEY, GREENBERG, ALLEN,

MEREDITH, and TOTH, Judges.1

ORDER

Opinions En Banc

The motion for class certification is denied by an equally divided en banc Court. The opinions

that follow reflect the views of the participating judges.

SCHOELEN, Judge, with whom DAVIS, Chief Judge, PIETSCH, and MEREDITH,

Judges, join concurring:

I. BACKGROUND

On April 6, 2015, Conley F. Monk, Jr., filed a petition with the Court for extraordinary

relief in the nature of a writ of mandamus. The petition sought an order from the Court directing

the Secretary to decide certain appeals within 1 year after a Notice of Disagreement (NOD) was

submitted. The petitioner filed the petition on behalf of himself and similarly situated persons

facing financial and medical hardship. The petition alleged that the Secretary's delay in

adjudicating claims for disability compensation benefits, which are pending an administrative

appeal before VA, constitutes a violation of the right to due process under the Fifth Amendment

to the U.S. Constitution. Additionally, the petition alleged that the Secretary's delay in adjudicating

disability compensation claims amounts to an arbitrary refusal to act. The petition requested that

the Court grant relief to an aggregate group pursuant to the principles of Rule 23 of the Federal

Rules of Civil Procedure (Rule 23). The Court interpreted this request as a motion for a class

action.

1

Judge Falvey did not participate in this matter because it was assigned to the full-Court and oral argument

was held before his appointment to the Court. See U.S. VET. APP. INTERNAL OP. P. sec. VII(b)(1)(B).

Regarding the request for class relief, the Court denied the petition on the ground that the

Court did not have the authority to adjudicate class claims. The U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) reversed the decision and remanded the matter for further

proceedings. Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017). The Court determined to consider

the remanded matter en banc.

On January 12, 2018, the Court granted the petitioner's "Amended Motion for Leave to

File an Amended Petition for Extraordinary Equitable and Collective Relief and Join Additional

Petitioners" (Amended Petition). The Amended Petition expands the proposed class by removing

the condition that the proposed class be limited to veterans facing medical or financial hardship.

Additionally, the Amended Petition joins eight additional petitioners to this action.2 The petitioners

have defined the proposed class as consisting of all individuals who applied for and have been

denied VA disability compensation benefits and have not received a decision from the Board of

Veterans' Appeals (Board) within 12 months of the date of filing a timely NOD. 3 Finally, the

Amended Petition adds a new basis to support the argument that a writ of mandamus is necessary

to correct the Secretary's delay in adjudicating disability claims pending on appeal.

On March 5, 2018, the en banc Court held oral argument on the issue of class certification.

The Court will address this issue and will not make any findings on the underlying merits of the

Amended Petition. The Court anticipates that, at some point, it will adopt a rule on aggregate

procedures that is appropriate for this Court. However, until that time, the Court will use Rule 23

of the Federal Rules of Civil Procedure as a guide.

II. ANALYSIS

A. The Court's Authority To Decide Aggregate Actions in Petitions for Writs of Mandamus

It is well settled that this Court has authority pursuant to the All Writs Act, 28 U.S.C.

§ 1651, to issue extraordinary relief in the form of a writ of mandamus. See Erspamer v. Derwinski,

1 Vet.App. 3, 7-8 (1990).4 Further, this Court has long since recognized that the Court's jurisdiction

under the All Writs Act "extends beyond pending cases; it embraces the prospective and potential

jurisdiction" of those cases that are within its appellate jurisdiction although no appeal has been

perfected. Id.; see Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943).

The Federal Circuit held that the All Writs Act also authorizes this Court to aggregate cases

in the context of a petition for extraordinary relief in the form of a writ of mandamus. Monk,

855 F.3d at 1318.5 The Federal Circuit also recognized that other statutory provisions grant the

2

These petitioners are James Briggs, Tom Coyne, William Dolphin, Jimmie Hudson, Samuel Merrick,

Lyle Obie, Stanley Stokes, and William Jerome Wood II.

3

At oral argument, the petitioners clarified that the decisions referred to in the petition and Amended Petition

are Board decisions.

4

The Court does not address the Court's authority to aggregate proceedings as part of its review of a final

Board decision.

5

In Harrison v. Derwinski, the Court denied an appellant's petition to establish class action procedures

because (1) the Court lacked authority to adopt class action procedures; (2) class action procedures would be "highly

unmanageable"; and (3) class actions are "unnecessary" because of the binding effect of the Court's precedential

2

Court authority to aggregate claims, including 38 U.S.C. § 7264(a), which specifically provides

the Court express authority to create rules and procedures it needs to exercise its jurisdiction, and

38 U.S.C. § 7261(a)(2), which expressly provides the Court the power to "compel action of the

Secretary unlawfully withheld or unreasonably delayed." Because Congress did not restrict section

7261(a)(2) to individual petitions, the Federal Circuit concluded that this Court may aggregate

petitions for extraordinary relief. Monk, 855 F.3d at 1320.

The Court has authority to conduct limited factfinding, for example, to determine whether

to equitably toll the Court's time limit to file a Notice of Appeal. See Dixon v. Shinseki, 741 F.3d

1367, 1377 (Fed. Cir. 2014) ("Because the period relevant to the equitable tolling inquiry occurs

after the [B]oard has rendered a final decision . . . , the Veterans Court must frequently 'seek facts

outside the record before the Board' in evaluating whether equitable tolling is warranted." (quoting

Bove v. Shinseki, 25 Vet.App. 136, 143 (2011) (per curiam order) ("[T]his Court . . . may seek

facts outside the record before the Board and independently weigh the facts to determine if

equitable tolling is appropriate."))), overruled on other grounds, Dixon v. McDonald, 815 F.3d

799 (Fed. Cir. 2016).6 When considering the merits of a petition for extraordinary relief, the Court

has long considered facts that were not before the Board. See Erspamer, 1 Vet.App. at 10.

This Court also concludes that it has authority to conduct limited factfinding to determine

whether class certification is warranted. An integral part of the Court's exercise of its authority to

issue writs on an aggregate basis includes the authority to conduct the limited factfinding needed

to decide whether the petitioners and putative class members satisfy this Court's requirements to

certify a class and to further decide the merits of the underlying petition. Accordingly, limited

factfinding in the context of class certification in petitions for extraordinary relief does not run

afoul of the prohibition of section 7261(c) that the Court shall not make de novo findings of fact

when it reviews the merits of a final Board decision.

B. VA Claims Adjudication and Appeals Process

To fully address the certification issue, the Court begins by examining the VA claims

adjudication and appeals processes. The Veterans Benefits Administration (VBA) is the branch of

VA that is responsible for operating various veterans benefits programs and services, including

disability compensation. Under the disability compensation program, veterans with disabilities that

are the result of a disease or injury incurred in, or aggravated during, active military service are

entitled to monetary benefits as compensation. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2018).

decisions in pending and future cases. 1 Vet.App. 438, 438-39 (1991) (en banc order). In Monk, the Federal Circuit

expressly overturned the first ground of Harrison, that is, the Federal Circuit disagreed that this Court lacks authority

to adopt class action procedures. 855 F.3d at 1320 (citing Harrison, 1 Vet.App. at 438) ("We disagree that

the . . . Court's authority is so limited."). Here, given that the Court will deny the petitioners' motion for class

certification because, for reasons explained below, the proposed class does not meet Rule 23's commonality standard,

the Court need not at this time decide whether Harrison's manageability and necessity grounds are appropriate

considerations for class certification.

6

Additionally, this Court has authority to make factual findings over ancillary matters. See, e.g., Golden

v. Gibson, 27 Vet.App. 1, 9 (2014) (determining whether an attorney fee agreement is "excessive or unreasonable"

under 38 U.S.C. § 7263(d) (emphasis added)); Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011) (per curiam order)

(stating that the Court may make findings of fact in deciding whether holding a party in contempt is warranted).

3

Generally, to establish entitlement to service-connected disability compensation, "the veteran must

show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease

or injury; and (3) a causal relationship between the present disability and the disease or injury

incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Once a disability is service connected, VA assigns a disability rating based on a schedule

of ratings for specific injuries and disabilities. Generally, VA applies the criteria established in the

pertinent diagnostic code in the disability rating schedule and assigns a disability rating for the

service-connected injury or illness. Different mental and physical injuries and diseases are rated

on a scale of 0 to 100%, in 10% increments. The disability ratings are based on the average

diminished earning capacity attributed to the service-connected disease or injury.7

The VA regional office (RO) also assigns an effective date for the award of

service-connected disability benefits. Generally, the effective date of an original claim or a

reopened claim is the date of the claim or the date entitlement arose, whichever is later. 38 U.S.C.

§ 5110(a). However, after a decision on a claim has become final within VA, a veteran may file a

request for revision of the prior decision based on clear and unmistakable error (CUE). If the

veteran establishes that there was CUE in the RO decision, then the RO decision will be revised,

meaning that the request for revision may result in an earlier effective date. See Cook v. Principi,

318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 5109A. Additionally, a

finally disallowed claim may be reopened based upon new and material evidence. 38 U.S.C.

§ 5108 ("If new and material evidence is presented or secured with respect to a claim which has

been disallowed, the Secretary shall reopen the claim and review the former disposition of the

claim.").

Applying for benefits from the VBA begins at one of the 56 ROs located throughout the

United States. After receiving the claim, VA has a statutory duty to assist a veteran in developing

evidence in support of his or her claim. 38 U.S.C. § 5103A. The duty to assist requires VA to

undertake "reasonable efforts" to seek all government records that may pertain to the claim,

including service personnel and medical records, VA medical records, and Social Security

Administration records. 38 U.S.C. § 5103A(c). VA is required to attempt to obtain records from a

Federal department or agency until it is reasonably certain that the records do not exist or that any

further efforts to obtain the records would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R.

§ 3.159(c)(2) (2018). When the Secretary is unable to obtain the records sought, the Secretary is

required to notify the claimant.8 38 C.F.R. § 3.159(e)(1). The duty to assist also requires VA to

acquire non-Federal records, including private medical records that the claimant adequately

7

The percentage of a disability rating assigned to a veteran is "considered adequate to compensate for

considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades

of disability." 38 C.F.R. § 4.1 (2018).

8

The notice provided must (1) identify the records that the Secretary was unable to obtain, (2) briefly describe

the efforts the Secretary made to obtain the records, and (3) describe any further action that the Secretary will take

with respect to the claim. 38 U.S.C. § 5103A(b)(2)(A). Furthermore, if the Secretary determines that continued

searching for service records would be futile, the Secretary is required to explain to the claimant how service records

are maintained, why the search that was undertaken constitutes a reasonably exhaustive search, and why further efforts

(e.g., inquiries directed to the named facilities, if they are still operational) are not justified. See Godwin v. Derwinski,

1 Vet.App. 419, 425 (1991).

4

identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); see 38 C.F.R. § 3.159(c)(1). For

private records, VA must make "an initial request for the records and, if the records are not

received, at least one follow-up request." 38 C.F.R. § 3.159(c)(1). If VA determines that those

records are unavailable, VA must notify the claimant of their unavailability. 38 U.S.C.

§ 5103A(b)(2)(A).

Because many of the issues in adjudicating disability compensation claims involve medical

questions, VA's duty to assist also includes "providing a medical examination or obtaining a

medical opinion when such an examination or opinion is necessary to make a decision on the

claim." 38 U.S.C. § 5103A(d). In a service-connection claim, a medical examination may affirm

that a disability exists and include an opinion regarding the relationship of the current disability to

the veteran's military service. In a rating-increase claim, a medical examination may describe the

nature and severity of the veteran's service-connected disability.

Once evidence in support of a veteran's claim has been gathered, the RO makes a decision

on the claim. If a veteran disagrees with the RO decision, he or she may appeal to the Board. An

appeal is a two-step process. The first step begins when a veteran files an NOD. An NOD may be

filed within 1 year after the RO's decision is mailed. The veteran may appeal the denial of service

connection, the percentage of the disability rating assigned to the disability, or the effective date

of the disability.

After an RO receives an NOD from a veteran, it sends the veteran an election letter asking

the veteran to choose between two nonexclusive appeals processes: (1) De novo review of his or

her claim by a decision review officer (DRO) (a senior ratings specialist), who is authorized to

hold a hearing and reverse the initial rating decision; or (2) a traditional appeal to the Board. See

38 U.S.C. § 7105(d). If the veteran elects de novo review by a DRO, and that officer resolves

some, but not all issues on appeal, or if the officer fails to resolve the appeal, a Statement of the

Case (SOC) will be prepared providing a more detailed rationale for the underlying ratings

decision. If the veteran elects the traditional appeal, an SOC will be issued. VA's duty to assist

continues throughout the appeals process, as VA is required to "take such development or review

action as it deems proper" to resolve the disagreement. 38 U.S.C. § 7105(d); see Prickett

v. Nicholson, 20 Vet.App. 370, 377 (2006) (stating that "[t]he VA adjudicatory system is designed

to afford both the claimant and the Government every opportunity to resolve a disagreement

between the parties").

If the veteran chooses to continue to pursue an appeal to the Board, he or she proceeds to

the second step of the appeal process by filing a VA Form 9 within 60 days of receiving the RO's

SOC, or within the remainder of the 1-year appeal period that begins when the veteran receives

the RO's decision, whichever is later. See 38 U.S.C. § 7105(d)(3). After a VA Form 9 is filed, the

RO must then certify the veteran's appeal to the Board. 38 C.F.R. § 19.35 (2018). Before the Board

makes a decision on a claim, the veteran is entitled to a hearing before the Board. 38 U.S.C.

§ 7107(b).9

9

This is a description of the existing VA adjudication and appeals process. Congress recently enacted the

Veterans Appeals Improvement and Modernization Act of 2017, 115 Pub. L. No. 55, 131 Stat. 1105 (Aug. 23, 2017),

which will modify this process. Because this modification is not yet in place, we do not comment on class actions

under the new statutory scheme.

5

C. Class Certification Under Rule 23

As stated above, in this case the Court will use Rule 23 of the Federal Rules of Civil

Procedure as a guide for considering whether to grant the petitioners' motion for class certification.

Class relief is appropriate when the class shares issues that are common to the class as a whole and

when the questions of law apply in the same manner to each class member. Califano v. Yamasaki,

442 U.S. 682, 701 (1979). In such cases, "the class-action device saves the resources of both the

courts and the parties by permitting an issue potentially affecting every [class member] to be

litigated in an economical fashion." Id.

Rule 23 governs class certification. To justify certification, each of the elements of Rule

23(a) must be met. See Amchem Products., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Richards v.

Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The party seeking class action bears the

burden of proving that the requirements of the class certification rule have been met. Amchem,

521 U.S. at 614; DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010).

The certifying court must rigorously analyze the Rule 23 prerequisites before certifying a

class. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). "Frequently that 'rigorous

analysis' will entail some overlap with the merits of the plaintiff's underlying claim [and this]

cannot be helped" because "'[t]he class determination generally involves considerations that are

enmeshed in the factual and legal issues comprising the . . . cause of action.'" Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting Falcon, 457 U.S. at 160 (internal quotation marks

omitted)). The four prerequisites to certify a class action under Rule 23(a) are the following:

1. Numerosity: The class is so numerous that joinder of all members is

impracticable;

2. Commonality: There are questions of law or fact common to the class;

3. Typicality: The claims or defenses of the representative parties are typical of the

claims and defenses of the class; and

4. Adequacy: The representative parties will fairly and adequately protect the

interests of the class.

FED. R. CIV. P. 23(a). Additionally, the proponents of class certification must demonstrate that the

class is maintainable under one of the subdivisions of Rule 23(b). See Amchem, 521 U.S. at 614.

Here, the petitioners argue that the class should be certified pursuant to Rule 23(b)(2), which

requires that "the party opposing the class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole." Petitioners' Response to Court's October 2017 Order

at 20 (Pet.'s Response).

D. Commonality

The crux of this case is commonality, Rule 23(a)'s requirement that there be questions of

law or fact common to the class as a whole. In Wal-Mart, 564 U.S. at 349-50, the U.S. Supreme

Court held that a proposed class must demonstrate that the class members suffer the same injury.

In proving this element, it is not sufficient that all class members suffer from a violation of the

6

same provision of law. Id. at 350. Rather, the certifying court must be convinced that the claims

of every class member "depend upon a common contention, . . . . that . . . is capable of classwide

resolution[, meaning that the contention is of such a nature] . . . that determination of its truth or

falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."

Id.

Wal-Mart makes clear that class certification depends not only on common questions but

also on the capability of a class action proceeding to provide common answers to the class

members' substantive claims that are likely to resolve the litigation. Id. In Wal-Mart, the

respondents sought to certify a class of female employees who alleged discrimination over pay

and promotion in violation of Title VII of the Civil Rights Act of 1964. The Supreme Court noted

that, in a Title VII suit involving an assertion of discriminatory bias, the principal substantive

inquiry is the reason for an employment decision. Id. at 352. In the class action suit – where

millions of discretionary employment decisions were at stake – the Supreme Court stated that,

"[w]ithout some glue holding the alleged reasons for all those decisions together, it [was]

impossible to say that examination of all the class members' claims for relief . . . produce[d] a

common answer to the crucial question why was I disfavored." Id. at 352 (emphasis in original).

Ultimately, the Supreme Court found that there was no commonality to respondents' merits

contention that Wal-Mart engaged in a pattern or practice of discrimination, because, although the

hiring and promotion decisions were based on a single Wal-Mart policy, the policy allowed

discretion by local managers over employment matters, leading the Supreme Court to conclude

that there was no "glue" holding the alleged reasons for all the hiring and promotion decisions

together. Id. at 352, 355-60. The Supreme Court held that because the employment decisions were

made by different Wal-Mart managers, across different stores, at different times, and for different

reasons, there was "no convincing proof of a companywide discriminatory pay and promotion

policy." Id. at 359-60.

Here, the petitioners argue that commonality is satisfied because all the class members

have suffered the same injury – delay – "the denial of timely benefits due to the VA's broken

appeals process."10 Pet.'s Response at 12. The petitioners state that, although "the length of time

they have waited for resolution of their pending appeals" is varied, this variance is unimportant

"so long as the wait is more than [12] months." Id.

The petitioners identify two legal questions common to the proposed class members:

(1) Whether extensive delays in failing to render decisions on disability claims within 12 months

of timely NODs violate the proposed class members' due process rights; and (2) whether the

proposed class members are entitled to a writ of mandamus compelling the Secretary to correct

the severe delays and inaction under Telecommunications Research & Action Center v. FCC

(TRAC), 750 F.2d 70 (D.C. Cir. 1984).11 Pet.'s Response at 13.

10

In support of their Amended Petition, the petitioners point out that it takes a veteran an average of 6 years

after the veteran files an NOD to receive a Board decision.

11

The petitioners had argued that they had a third question in common: Whether VA's delay in adjudicating

the proposed class members' claims amounts to an arbitrary refusal to act under Costanza v. West, 12 Vet.App. 133

(1999) (per curiam order). The petitioners had urged the Court to reject the Costanza standard and instead adopt the

TRAC test for determining whether a writ of mandamus should issue. In Martin v. O'Rourke, 891 F.3d 1338, 1348

7

Though the petitioners argue that the reasons for delay are irrelevant to their two theories,

the law makes clear that each of the petitioner's legal theories requires this Court to determine

whether VA's delay is unreasonable. Whether delay is unreasonable can be determined by

examining the substantive claims underlying their petition. For example, a claim based on a

constitutional due process violation requires the Court to examine the justification VA offers for

the delay. In Federal Deposit Insurance Corp. v. Mallen, 486 U.S. 230, 242-43 (1988), the

Supreme Court examined a process permitting a postsuspension hearing followed by a 90-day

delay in issuing a decision on a bank officer's suspension from office. In evaluating whether there

had been a due process violation, the Supreme Court applied a balancing test involving the

importance of the private interest and harm to that interest caused by delay; the justification offered

by the Government for the delay and its relation to the underlying governmental interest; and the

likelihood that the interim decision may have been mistaken.12 Id.

Similarly, before this Court may conclude that VA's adjudication of the putative class

members' appeals has been unreasonably delayed under TRAC, the Court must examine VA's

explanation for the delay and weigh this explanation against other factors.13 In Martin, supra

note 11, the Federal Circuit stated that the first TRAC factor, referred to as the "rule of reason,"

requires the Court to "look at the particular agency action for which unreasonable delay is alleged,"

noting that "more complex and substantive agency actions" may be expected to take longer than

"purely ministerial ones."14 891 F.3d at 1345-46. The Federal Circuit also noted that the Court may

consider whether the delay is based on "complete inaction by . . . VA" or whether the delay may

be attributed, in part, to "VA's statutory duty to assist a claimant in developing his or her case."

Id.15 Thus, the reasonableness or unreasonableness of VA's delay is a key element of each of the

petitioner's claims.

(Fed. Cir. 2018), the Federal Circuit adopted the TRAC standard, in place of the Costanza standard, as the framework

for this Court to use in evaluating mandamus petitions based on unreasonable delay. Because of the Federal Circuit's

holding in Martin, there is no need to address class certification based on Costanza.

12

The Supreme Court reformulated the balancing-factors test announced in Mathews v. Eldridge, 424 U.S.

319 (1976), for assessing the permissibility of postdeprivation process. See Jordan by Jordan v. Jackson, 15 F.3d 333,

345-46 (4th Cir. 1994) (applying Mallen factors in evaluating whether a delay in judicial review of a decision removing

a child from his home, including the "likelihood that the state's removal of a child . . . will have been without cause,

the strength of the state's justification for the delay, and the closeness of the relationship between this justification and

the government's underlying interest").

13

TRAC's unreasonable-delay analysis requires weighing (1) the length of time that has elapsed since the

agency came under a duty to act and its relation to a "rule of reason"; (2) whether Congress has provided a timetable

or other indication of the speed with which it expects the agency to proceed; (3) the character of the interests at stake

– economic versus health and human welfare; (4) the effect of expediting delays on competing agency priorities;

(5) the nature and extent of the interests prejudiced by delays; and (6) the presence of unreasonable delay, which does

not have to be due to impropriety. TRAC, 750 F.2d at 79-80.

14

Two specific ministerial tasks highlighted by the Federal Circuit are the RO's certifying of appeals to the

Board and the Board's docketing of appeals. Martin, 891 F.3d at 1346.

15

Examples of other courts applying the rule of reason analysis include Irshad v. Johnson, 754 F.3d 604, 607

(8th Cir. 2014) (reviewing reasons for agency delay as part of TRAC analysis and concluding that the agency delay

was not unreasonable); Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987) (stating that under TRAC a court should

"consider the agency's explanation, such as administrative necessity, insufficient resources, or the complexity of the

task confronting the agency").

8

Judge Allen's dissent contends that our opinion is based on a flawed understanding of the

theory underlying the petitioners' claims "that there is a period of time [more than 1 year between

the filing of an NOD and the issuance of a Board decision] that is simply too long for a claimant

to wait for a decision." Post at 26. This theory purportedly does not depend on the reason for the

delay. Indeed, Judge Allen, echoing the petitioners, states that the reasons for the delay do not

matter. Id. at 25-26. He claims that commonality exists because the petitioners pose two questions:

"[H]ow long is too long under the Constitution's Due Process Clause?"16 and is a 1-year delay

between the filing of an NOD and the issuance of a Board decision unreasonable, entitling the

proposed class members to a writ of mandamus compelling the Secretary to correct the severe

delays and inaction? Id. Judge Allen contends that the Court is capable of answering both

questions.

Regarding the constitutional claim, Judge Allen's dissent states that the petitioners' theory

that some quantum period of delay is too long is supported by law and points to Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 547 (1985). Mr. Loudermill, a security guard who had

been terminated from employment, had to wait 9 months for an administrative decision following

review of his termination. Id. at 535-36. He asserted that the administrative proceedings "took too

long" and that the length of this delay constituted a due process violation. Id. at 546. The Supreme

Court concluded that Mr. Loudermill had not stated a claim of constitutional deprivation because

his claim "reveal[ed] nothing about the delay" and "[he] offer[ed] no indication that his wait was

unreasonably prolonged other than the fact that it took nine months." Id. at 547. Loudermill, like

Mallen, makes clear that delay cannot constitute a constitutional due process violation unless the

delay is unreasonable. Thus, it is clear that the unreasonableness of VA's delay in adjudicating the

petitioners' disability claims is a key substantive element of a due process claim based on delay.

Judge Allen's dissent also contends that, because of our purported flawed understanding of

the true nature of the petitioners' claims, we mistakenly insist that "the petitioners must identify

the causes for the delay to prevail." Post at 26. The fundamental flaw with Judge Allen's position

is that it fails to recognize that, despite the petitioners' effort to argue that the reasons for VA's

delay in adjudicating their compensation claims do not matter, the substantive law underscores

that a central inquiry that must be resolved for each claim is whether VA's delay is unreasonable.

Because reasonableness and unreasonableness are relative concepts, it is impossible to determine

whether VA's delay in adjudicating disability compensation claims falls into either category

16

Judge Allen's dissent erroneously contends that we have reframed the petitioners' questions. Post at 26.

However, his opinion is the one that reframes the questions. The petitioners did not ask whether there was some period

of time beyond which delay is unconstitutional and warrants the issuance of a writ of mandamus because of

unreasonable delay. Rather, they asked two very specific questions: Whether a 1-year delay between the filing of the

NOD and the issuance of a Board decision violates the Constitution's Due Process Clause and whether such delay

entitles the petitioners to a writ of mandamus. Essentially, Judge Allen has replaced the very specific 1-year period

selected by the petitioners with a broad, unspecified period. The effect of his reframing of the issues is that the Court

would be left to fill in the blank and determine the exact time period that will or will not survive constitutional muster

or entitle the petitioners to a writ of mandamus. Judge Allen's reframing of the issues also sends a signal to putative

classes that the Court will gladly reframe issues for class certification purposes, a practice to be discouraged as it may

encourage slapdash pleadings.

9

without exploring the reasons for the delay.17 Our insistence that the petitioners identify the reasons

for delay is so that we may determine whether commonality exists.

Contrary to Judge Allen's claim, the purpose of our examination of the varying reasons for

delay at VA is not to resolve the merits of the claim. Rather, we conform with the duty under

Rule 23(a), to look beyond the pleadings to "understand the claims, defenses, relevant facts, and

applicable substantive law in order to make a meaningful determination of the certification issues."

Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996); see Wal-Mart, 564 U.S. at 351-52.

This obligation to examine the nature of the substantive claim to see whether commonality exists

among the class is part of the "rigorous analysis" that the certifying court must make. Wal-Mart,

564 U.S. at 351; see Stockwell v. City & Cty. of San Francisco, 749 F.3d 1107, 1114 (9th Cir.

2014) ("To assess whether the putative class members share a common question, the answer to

which 'will resolve an issue that is central to the validity of each one of the [class members's]

claims,' we must identify the elements of the class members's case-in-chief." (quoting Wal-Mart,

564 U.S. at 350)).

The Secretary contends that there is no common answer to the question of the cause of

VA's delay for each of the proposed class members. Secretary's Response to the Court's Oct. 2017

Order at 18-24. The Secretary points out that compliance with the statutory duty to assist is

responsible for the delay experienced by some veterans.18 Id. at 20-23. Additionally, he notes that

VA's duty to provide veterans hearings on their claims may cause delay.19 Id. And, in other cases,

delay is precipitated by the number and complexity of the claims on appeal. 20 Id. Further, the

Secretary argues that, because a delay of any particular period of time may be quite reasonable in

one case and extremely unreasonable in another, certification of a broad class based on allegations

of systemic delay throughout VA's two-step appellate process is inappropriate.21 Id. The Federal

17

Judge Allen's dissent maintains that Wal-Mart supports his analysis that reasons for the agency delay do

not matter in this case. Judge Allen's dissent contrasts employment discrimination claims with the petitioners' due

process claims. Judge Allen's dissent contends that, in employment discrimination claims, the "reasons for

employment actions mattered in terms of their legality." Post at 25. By contrast, Judge Allen's dissent maintains that

the legality of VA's actions do not depend on the reasons for VA's delay. However, Judge Allen's dissent fails to

recognize that the reasons for VA's delay do matter in terms of the legality of the delay. The only delay that may give

rise to the petitioners' constitutional or statutory claims is delay that is unreasonable. And, because not all delay within

the VA claims system is unreasonable, the reasons for VA's delay do matter.

18

Petitioners Briggs, Coyne, Hudson, Merrick, and Stokes continued to submit evidence throughout the

appeal. Additionally, VA assisted these petitioners by obtaining records and scheduling VA medical examinations.

19

Petitioners Coyne, Dolphin, Hudson, Merrick, and Stokes requested or participated in either DRO or Board

hearings, and some petitioners participated in both.

20

Petitioners Briggs, Coyne, Dolphin, Hudson, Merrick, and Stokes filed multiple claims, including as many

as 19 claims.

21

The Secretary notes that courts have been cautious in certifying cases involving allegations of due process

violations. See, e.g., Crosby v. SSA, 796 F.2d 576, 581 (1st Cir. 1986) (denying class claims alleging due process

violations based on unreasonable delays; "delays may be analyzed for reasonableness only in the context of individual

cases"); Dale v. Hahn, 440 F.2d 633, 640 (2d Cir. 1971) (finding that it may be "more appropriate to handle difficult

constitutional questions arising from the application of a statute to varying fact-patterns on a case-by-case basis rather

than in a class action"); Lightfoot v. Dist. of Columbia, 273 F.R.D. 314, 326, 326-28 (D.D.C. 2011) (stating that a

"more amorphous due process claim [of systemic misconduct], which turns on the flexible, multi-factor balancing test

mandated by Mathews, is not as easily susceptible to class[]wide treatment"); see also Jennings v. Rodriguez,

138 S. Ct. 830, 852 (2018) (remanding case for lower court to consider whether a Rule 23(b)(2) class action continues

10

Circuit echoed a similar sentiment in Martin, when it stated that, given the nature of the

reasonableness inquiry, "we see no reason to articulate a hard and fast rule with respect to the point

in time at which a delay becomes unreasonable" under the TRAC standard. Martin, 891 F.3d at

1346.22 The Federal Circuit reasoned that "[b]ecause . . . reasonableness depends on the particular

agency action that is delayed, a two-year delay may be unreasonable in one case, and it may not

be in another."23 Id.

The Secretary's argument is persuasive. The petitioners have chosen not to seek to certify

a class based on a specific practice or policy by the Secretary that results in unreasonable delays.

Instead, the petitioners have posited that there is systemic delay throughout the appeals process,

but they have not attempted to identify the causes for the delay, such that determining the "truth

or falsity will resolve an issue that is central to the validity of each of the claims in one stroke." 24

Wal-Mart, 564 U.S. at 350. "Mere allegations of systemic violations of the law . . . will not

automatically satisfy Rule 23(a)'s commonality requirement." Devaughn, 594 F.3d at 1195.25

to be the appropriate vehicle for due process claims, noting that due process calls for "'flexib[ility]'" (quoting Morrissey

v. Brewer, 408 U.S. 471, 481 (1972))).

22

The Federal Circuit also agreed with our Court's decision below not to rely on the petitioners' proffer of

VA's average statistical delay to answer the reasonableness inquiry, because the statistics are "merely speculative,"

and the Federal Circuit reiterated that VA's potential delay "depend[s] on a long 'chain of hypothesized actions'" in

each petitioner's case. Martin, 891 F.3d at 1346 n.10 (quoting Ebanks v. Shulkin, 877 F.3d 1037, 1039 (Fed. Cir.

2017)).

23

Martin also noted that a claim that an individual has been denied due process because of delayed agency

action "'is essentially no different than an unreasonable delay claim.'" Martin, 891 F.3d at 1348 (quoting Vietnam

Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C. Cir. 2010)).

24

The petitioners' lack of regard for whether the complained of delay is unreasonable may be illustrated by

the decision to include Ms. Obie as a named petitioner. The petitioners do not dispute the Secretary's assertion that the

lengthy delay Ms. Obie experienced is a result of her failure to submit a particular form to VA.

25

Courts have made similar decisions. See, e.g., M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 843-44

(5th Cir. 2012) (denying class certification where the proposed common issues "'stretch[] the notions of commonality'

by attempting to aggregate several amorphous claims of systemic or widespread conduct into one 'super-claim'"

(quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997))); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,

494, 497 (7th Cir. 2012) (dismissing a class that "sought to lump together thousands of disparate plaintiffs with widely

varying individual claims"); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (finding that, instead of

advancing a discrete question of law, the proposed class broadly "conflate[d] a variety of claims to establish

commonality via an allegation of 'systemic failures'"); Stewart v. Winter, 669 F.2d 328, 337 (5th Cir. 1982) (denying

class certification where there was only an abstract common question meaning that "any allegation of a breach of legal

duty by any class of defendants – no matter how vast or diverse – could be impressed into a single case").

11

On the other hand, courts have found commonality when the substantive challenge of a

proposed class was confined to a specific policy or course of conduct that affects all members of

the putative class in the same way. See, e.g., DL v. District of Columbia, 860 F.3d 713, 724 (D.C.

Cir. 2017) (certifying four subclasses defined in reference to particular uniform policies or

practices); Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426,

436, 440 (7th Cir. 2015) (upholding class certification in a racial discrimination suit where three

African-American teachers lost their positions as part of a "turnaround" policy of deficiently

performing schools); Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014)

(affirming certification of wage-and-hour class action where class challenged a specific company

payment policy that applied to all class members).

In Parsons v. Ryan, 754 F.3d 657, 662 (9th Cir. 2014), the U.S. Court of Appeals for the

Ninth Circuit (Ninth Circuit) approved the district court's certification of a class and subclass. The

class consisted of inmates seeking redress from deficiencies in the prison health care system that

had allegedly exposed all inmates to a substantial risk of serious harm. The subclass consisted of

inmates who claimed that the conditions of isolation units constituted cruel and unusual

punishment. Id. In making the claims about systemic deficiencies, the class members identified 10

specific uniform statewide policies and practices governing the health care system and 7 specific

policies governing the prison isolation units. Id. at 678. The Ninth Circuit found that the district

court had not abused its discretion in certifying the class and subclass because the class members

pointed to specific policies and practices that were "defined with sufficient precision and

specificity; they involve particular and readily identifiable conduct on the part of the defendants."

Id. at 683. In discussing the policies of the health care system, the Ninth Circuit stated:

Each of these 10 policies and practices affords a distinct basis for concluding that

members of the putative class satisfy commonality, as all members of the class are

subject identically to those same policies and practices, and the constitutionality of

any given policy and practice with respect to creating a systemic, substantial risk of

harm to which the defendants are deliberately indifferent can be answered in a

single stroke.

Id. at 679 (emphasis added). The lesson to be learned from Parsons is that a class proceeding may

be an appropriate vehicle to challenge systemic deficiencies, but only when the putative class

targets specific polices or practices that allegedly violate the law. However, at oral argument, the

petitioners clarified that they do not challenge specific VA policies or practices. See Oral

Argument ("Oral Argument") at 31:15-44, Monk v. Wilkie, U.S. Vet. App. No. 15-1280 (oral

argument held Mar. 5, 2018), http://www.uscourts.cavc.gov/oral_arguments_audio.php

(petitioners' counsel clarifying: "[T]here is no express system-wide policy or procedure [that we

are challenging].").

Here, we conclude that there is no common question for the petitioners' and putative class's

cause of delay, the answer to which "will resolve an issue that is central to the validity of each one

of the [class member's] claims." Wal-Mart, 564 U.S. at 350. Therefore, we conclude that, because

the petitioners have not satisfied the commonality requirement, the Court need not address the

remaining Rule 23(a) prerequisites.

12

E. Rule 23(b)(2)

The petitioners seek relief in the form of an order from the Court directing the Secretary to

issue a Board decision in all the putative class members' claims within 1 year following the timely

filing of an NOD. Yet, apparently recognizing that some of the delay in adjudicating VA claims is

reasonable and is related to VA's development of evidence to support a veteran's claim, the

petitioners propose that the 12-month deadline could be waived by a veteran to allow the claim to

be developed.26 See Oral Argument at 15:30-16:05, 45:40-46:00, 59:33-1:00:14, 2:24:30-2:26:09.

Rule 23(b)(2) of the Federal Rules of Civil Procedure permits a court to certify a case for

class-action treatment if "the party opposing the class has acted or refused to act on grounds that

apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole." Rule 23(b)(2), on the other hand, "does not authorize

class certification when each individual class member would be entitled to a different injunction

or declaratory judgment against the defendant." Wal-Mart, 564 U.S. at 360. In Wal-Mart, the

Supreme Court stated that "the key to the (b)(2) class is 'the indivisible nature of the [relief].'" Id.

(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.

REV. 97, 132 (2009)). The idea underlying Rule 23(b)(2) is that the relief applies to all the class

members, or to none of them. Id. Here, the relief proposed by the petitioners does not satisfy

Rule 23(b)(2) because it would require that the remedy be individualized and tailored to the needs

of the individual veteran. This kind of relief would not truly be classwide. The 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.

Upon consideration of the foregoing, it is

ORDERED that the petitioners' motion for class certification is DENIED.

DATED: August 23, 2018

DAVIS, Chief Judge, concurring: I fully join Judge Schoelen's opinion. I write separately

to make the point that time spent by VA processing cases is not always unreasonable or

unconstitutional delay. I also believe that 5 to 7 years generally for claims processing at VA is

unreasonable, that is, takes entirely too long. With a backlog of more than 450,000 cases, the

claims processing system needs to be radically changed to provide more efficient claims

resolution, perhaps a reasonable goal would be to resolve, claims within 3 years. A good system

would include the following features, among others: Finality, a closed record, aggregate claims

resolution, alternative dispute resolution, and claims waivers for immediate cash payments.

Without radical change or a new system implementing the features mentioned, backlog and delay

will continue to be the norm.

The petitioners in this case have asserted that a 1-year delay from the filing of an NOD to

a Board decision is unconstitutional or, at a minimum, statutorily unreasonable. In her opinion,

Judge Schoelen correctly recognizes that answering this question requires the Court to consider

26

Because the development of a claim may include hearings before the RO and the Board, it would appear

this waiver may also have to be extended to the right to have a hearing.

13

the cause of the delay and that the petitioners have not demonstrated a common question or

common answer as required by Wal-Mart Stores, Inc. v. Dukes, 546 U.S. 338 (2011).

In his dissent-in-part, Judge Allen, joined by Judges Bartley and Toth, frames the class

issue as whether the "delays in the VA benefits system are both unconstitutional and 'unreasonable'

no matter the reason."27 He believes that this issue presents common questions, such as "how long

is too long under the Constitution's Due Process Clause? 28 or "whether a 1-year delay between the

filing of an NOD and the rendering of a decision is 'unreasonable,' regardless of the constitutional

boundary,"29as "they are the same for every person who is a member of the class."30 I do not agree.

Wal-Mart instructs that "[c]ommonality requires the plaintiff to demonstrate that the class

members 'have all suffered the same injury,' . . . [not] merely that they have all suffered a violation

of the same provision of law."31 The proposed class questions in Judge Allen's dissent-in-part focus

only on the latter part of the inquiry—whether the petitioners' constitutional or statutory rights

have been violated—without regard to whether their injuries are, in fact, common, or whether

addressing their injuries is "of such a nature that it is capable of classwide resolution."32

These are critical questions because, "[w]ithout some glue holding the alleged reasons for

all the alleged [delays] together, it will be impossible to say that examination of all the class

members' claims for relief will produce a common answer to the crucial question why was [my

claim delayed]?"33 Thus, Wal-Mart requires that a class must have claims that "depend on a

common contention" that is "capable of classwide resolution" such that a "determination of its

truth or falsity will resolve an issue that is central to the validity of each one of the claims in one

stroke."34 Here, there are countless different reasons for processing time for each claim; therefore,

one answer will not resolve all claims. Significantly, claims processing time does not necessarily

mean "delay."

As Judge Schoelen notes, "[t]he petitioners have chosen not to seek to clarify a class based

on a specific practice or policy by the Secretary . . . . [and] they have not attempted to identify the

causes for the delay."35 But the four Judges finding no commonality do not, contrary to the position

taken by my colleagues in Judge Allen's dissent-in-part, reject the petitioners' legal theory or

improperly reach the merits of their claims. Instead, Judge Schoelen's opinion recognizes that the

VA appeals process is not a monolith and that any answer to the petitioners' questions requires a

27

Post at 23.

28

Post at 24.

29

Post at 24.

30

Post at 25.

31

546 U.S. at 350.

32

Id.

33

Id. at 352.

34

Id. at 350.

35

Ante at 11.

14

fact-specific inquiry driven by multifactor balancing tests.36 Indeed, as the Federal Circuit recently

recognized, whether a delay is unreasonable in any given case hinges, in part, on a "'rule of reason'

analysis [that] must, of course, look at the particular agency action for which unreasonable delay

is alleged" and "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."37

The VA adjudication process is complex, consisting of many stages that impose many

obligations on both VA and the claimant. Some stages—particularly those involving only

administrative or ministerial tasks—may indeed produce unlawful delays.38 On the other hand,

some stages will inherently take time to complete. For example, a veteran might submit evidence

that triggers VA's duty to provide a medical examination, or a case might require VA to submit

inquiries to the National Archives and the Department of Defense. The amount of time it takes to

properly develop an appeal will necessarily vary case by case and veteran by veteran, and it is

wrong to equate the mere passage of time with delay without some inquiry into why time has

passed.

Ultimately, whether 1 year, 5 years, or even 10 years elapsing between an NOD and a

Board decision is unlawful depends entirely on what caused that much time to pass. To rule on the

constitutionality or reasonableness of a delay,39 the Court must apply balancing tests based on

many factors, including the reasons for that delay. Based on the extremely broad assertions

presented by the petitioners in this case, Judge Schoelen's opinion correctly finds no commonality.

This is not to say that, in a case where petitioners show that the weights on the balancing-

test scales are the same for each class member, the Court would not certify a class to challenge

part of VA's appellate process. There may very well be portions of that process that are ripe for

aggregate remedies, and I am confident that the Court would certify a class when presented with

the appropriate facts.

Finally, I want to emphasize the significance of the Court's decision and the historic nature

of this case. Although Judge Allen calls Judge Schoelen's opinion a "plurality," that label is only

partly accurate. As I read the various separate statements filed in this decision, six other judges

join that part of Judge Schoelen's opinion prior to section II.D, addressing commonality. Those

sections agreed upon by seven of the Court's Judges may well constitute a majority opinion, and I

see no reason why those sections are not entitled to recognition as binding precedent. Only the

commonality and remedy sections lack precedential value.

36

See ante at 8 (describing the balancing tests required by our precedent).

37

Martin v. O'Rourke, 891 F.3d 1338, 1345, (Fed. Cir. 2018).

38

See id. ("For example, [the Court] should 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].")

39

But see id. at 1348 ("If the Veterans Court, employing the [] analysis [set forth in Telecommunications

Research & Action Center v. FCC ("TRAC"), 750 F.2d 70, 76 (D.C. Cir. 1984)], finds a delay unreasonable (or not

unreasonable), it need not separately analyze the due process claim based on that same delay." (citing Vietnam

Veterans of Am. v. Shinseki, 599 F.3d 654, 660 (D.C. Cir. 2010))).

15

In the precedential parts of its decision, the Court holds that it will, in appropriate cases,

entertain class actions. This holding is a seismic shift in our precedent, departing from nearly 30

years of this Court's case law. The fact that the Court did not find aggregate action appropriate in

this case does not change the fact that this is a watershed decision, and its importance should not

be diminished merely because the Court declined to certify this proposed class. On the contrary,

the Court's decision will shape our jurisprudence for years to come and, I hope, bring about positive

change for our Nation's veterans and ensure that justice is done more efficiently and timely.

ALLEN, Judge, with whom BARTLEY and TOTH, Judges, join, concurring in part and

dissenting in part.

To state the obvious, this is an incredibly important case. I concur fully in the plurality

opinion's40 determinations that the Court will, in appropriate cases initiated by a petition, utilize

class action or aggregate resolution procedures and that it will consider Federal Rule of Civil

Procedure 23 as a guide for doing so. See ante at 6. These are important decisions for this Court

and its congressionally mandated role to provide meaningful judicial review to veterans41 and other

claimants in the VA system.42

I part ways with the plurality, however, with respect to its determination that the proposed

class does not satisfy the prerequisites for certification. Specifically, the plurality concludes that

the proposed class does not qualify for class treatment principally because it does not satisfy the

requirement under Federal Rule of Civil Procedure 23(a)(2) that "there are questions of law or fact

common to the class." See ante at 6,12. I believe the plurality fundamentally misapprehends and

misapplies this commonality requirement by imposing too high a bar for certification and

conflating resolution of the merits of the petitioners' claims with the procedural question of

commonality.

40

I refer to Judge Schoelen's opinion as the "plurality" because it is the opinion in which the most Judges

concur. It might have been more accurate to describe the opinion as a concurrence, but for what it's worth, I've used

"plurality."

41

In the remainder of this opinion, I generally use the term "veteran" to describe those individuals

participating in the VA administrative appeals process. I mean "veteran" to encompass all claimants for benefits,

including non-veteran claimants, unless context dictates otherwise.

42

I also thank counsel for the parties and amici for the universally excellent briefing in this matter. I would

never have thought that nearly 500 pages of legal argument would serve to simplify matters, but it did. That was due

in large measure to the serious attention devoted to putting these materials together.

16

As I explain below, the plurality does not accept the claims the petitioners make in this

matter. The petitioners claim that the current system for resolving VA administrative appeals leads

to delays that are simply too long under both the Constitution and the statutes regulating the

Agency. The petitioners also claim that this delay is unlawful because resolving the appeal takes

longer than 1 year. These may not be "good" claims, but they are the petitioners' claims. And it is

those claims the Court should use to make the certification decision at hand. By refusing to accept

the petitioners' claims, the plurality stacks the deck against certification. This is unfortunate. In so

doing, the plurality has effectively precluded the Court from playing a meaningful role in

addressing the systemic deficiencies plaguing the veterans benefits system—at least for today.

Accordingly, I respectfully dissent.

In the detailed opinion that follows, I begin by considering the factual and procedural

context of the petitioners' claims for class action treatment. This discussion is important not only

to lay the foundation for the legal arguments, but also to make clear just how serious the claims

the Court faces are. Thereafter, I comment briefly on the portions of the plurality opinion in which

I concur. Finally, I turn to a detailed explanation of why the proposed class satisfies the

requirements for class treatment including commonality.43

I. THE FACTUAL AND PROCEDURAL CONTEXT

In his novel Bleak House, Charles Dickens writes of a fictional case in the English High

Court of Chancery, Jarndyce v. Jarndyce. That suit had been pending for so long that

"[i]nnumerable children have been born into the cause; innumerable young people have married

into it; innumerable old people have died out of it . . . [and] a long procession of Chancellors has

come in and gone out." 1 WORKS OF CHARLES DICKENS 4-5 (1891). For Dickens, Jarndyce v.

Jarndyce was a useful literary device to tell his story. Sadly, however, it is also an apt analogy for

what countless veterans face when seeking benefits from the Department of Veterans Affairs.44

The petitioners are all veterans who served our Nation and sought benefits from VA. And

each has waited years to have their benefits claim decided after they disputed an initial decision

by filing an NOD. The details of their stories vary (as one would expect), but the ultimate outcome

is the same: significant delays.45

Unfortunately, the petitioners are not outliers. VA's veterans benefits system is beset by

delays certainly rivaling those in the fictional Jarndyce v. Jarndyce, some of which are quite

difficult to comprehend. As of May 2017

43

As I explain, I would certify the class. That is all the Court is called on to decide today. I do not address

either merits or remedial issues in this opinion, beyond what is necessary to address the certification question.

44

The Supreme Court has also used Bleak House to invoke the notion of legal proceedings that seemingly

have no end. See, e.g., Stern v. Marshall, 564 U.S. 462, 468 (2011); Hartman v. Moore, 547 U.S. 520, 526 (2006).

45

We should never forget the human faces associated with the abstract concept of administrative delay. Such

delays for veterans seeking benefits can have profoundly significant real-world implications. See Amicus Curiae Brief

of Swords to Plowshares, Connecticut Veterans Legal Center, New York Legal Assistance Group, Veteran Advocacy

Project, and Legal Aid Service of Broward County in Support of Petitioners at 7-19 (Feb. 8, 2018), Monk v. Shulkin,

U.S. Vet. App. No. 15-1280 (argued Mar. 5, 2018), http://efiling.uscourts.cavc.gov (describing consequences such as

homelessness, health problems, and threats to physical safety flowing from delays in VA benefits adjudications).

17

 After filing an NOD, a veteran waits on average 16.5 months to receive a Statement of

the Case (SOC);

 a veteran who elects to proceed with a formal appeal to the Board after receiving an

SOC waits on average 33 months for VA to certify and transfer the appeal to the Board,

an action that is largely ministerial; and

 a veteran then waits yet another 9.5 months for the Board to issue a decision. 46

Combined, these figures mean that after a veteran initiates an administrative appeal by filing an

NOD, the veteran waits nearly 5 years for a Board decision. This is staggering. Moreover, unlike

in Dickens' fictional tale, we do not have just a single case. Instead, there are more than 450,000

claims in appellate status before VA. See Board of Veterans' Appeals, Annual Report FISCAL YEAR

2016, at 30 (2017).

The petitioners sought to exit the "hamster-wheel" on which they found themselves. See

Coburn v. Nicholson, 19 Vet.App. 427, 434 (2006) (Lance, J., dissenting) (discussing "the

hamster-wheel reputation of veterans law"). They filed petitions under the All Writs Act, 28 U.S.C.

§ 1651(a), seeking an order "directing [the Secretary] to render decisions on pending appeals

within one year of receipt of timely NODs and to render decisions on [the named petitioners']

pending appeals within sixty days."47 Amended Pet. at 19. The petitioners claim that the current

VA system is so poorly designed and managed that the time it takes to render decisions is unlawful

under both statutory and constitutional principles. See Amended Pet. at ¶¶ 30-48.

The petitioners essentially argue that the delays in the VA benefits system violate the law

in two independent ways, regardless of the reasons for the delay. That is, the petitioners posit that

there is a time that is simply "too long" to wait for a result, no matter what makes the process that

lengthy. First, the petitioners note that, as claimants seeking benefits, they have a constitutionally

protected property interest in their benefits claims. Id. at ¶ 31 (citing Cushman v. Shinseki, 576

F.3d 1290, 1298 (Fed. Cir. 2009)). Given this constitutionally privileged status, the petitioners

continue, the flexible balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976), indicates that

the average delays in the VA system are unconstitutional. Amended Pet. at ¶¶ 32-35. Alternatively,

46

The statistics I provide above are taken from the Board's May 5, 2017, response to the petitioners' request

under the Freedom of Information Act (FOIA). This document is attached as Exhibit A to the Corrected Amended

Petition for Extraordinary Equitable and Collective Relief (Amended Pet.). The statistics are consistent with statistics

contained in a recent VA Office of Inspector General report that the petitioners submitted as supplemental authority.

See VA OIG REPORT No. 16-01750-79, VETERANS BENEFITS ADMINISTRATION, REVIEW OF TIMELINESS OF APPEALS

PROCESS, (Mar. 28, 2018)

47

Counsel for the petitioners made clear at oral argument that the "decisions" referred to in the amended

petition were those of the Board. Oral Argument at 10:32-11:22. The petitioners were far too coy in the amended

petition about what "decisions" they sought. The lack of clarity on that point does not have legal significance because

we know now what the term means as used in the petition. Nevertheless, the failure to be upfront about this issue

affected both counsel for the Secretary and the Court. Given the otherwise high quality of the petitioners' papers and

argument in this case, I remain quite baffled about the decision to "hide the ball" on such an important issue.

18

the petitioners assert that these delays are "unreasonable" to the degree that the Court has the

statutory authority to correct them. Id. at ¶¶ 36-48; see 38 U.S.C. § 7261(a)(2) (providing that the

Court has the power to "compel actions of the Secretary unlawfully withheld or unreasonably

delayed").

The class proposed to address the claimed legal deficiencies in the VA system was defined

(as seen through the lens of the oral argument clarification concerning the meaning of "decision,"

see supra note 46) as individuals who

(1) "applied for and [had] been denied VA disability benefits in whole or in part;"

(2) "timely filed an NOD upon denial of an original, reopened, or remanded

claim;" and

(3) did not receive a Board "decision on the pending appeal within twelve (12)

months of the date of the NOD."

Amended Pet. at ¶ 13.

Of course, each petitioner has his or her own story leading to a purported unreasonable

delay.48 Each may seek relief independently, so why proceed as a class? The Federal Circuit

effectively answered that question in Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. 2017). That

appeal concerned the denial of a writ of mandamus based on delay in holding a Board hearing. Id.

at 1038. The Federal Circuit commented that it was uncomfortable with granting a writ in an

individual case for "veterans who claim unreasonable delay in VA's first-come-first-served queue."

Id. at 1039-40. This was so because granting individual relief "may result in no more than line-

jumping without resolving the underlying problem of overall delay." Id. at 1040; see Monk v.

Shulkin, 855 F.3d 1312, 1321 (Fed. Cir. 2017) (commenting that "a claim aggregation procedure

may help the Veterans Court achieve the goal of reviewing the VA's delay in adjudicating

appeals"); see also Young v. Shinseki, 25 Vet.App. 201, 215 (2012) (en banc) (Lance, J.,

dissenting) (noting the Secretary's tendency to correct problems of veterans raised in a petition

such that that individual dispute becomes moot). So, what was to be done? The Federal Circuit

stated that "the issue [of systemic delay] seems best addressed in the class-action context, where

the court could consider class-wide relief." Ebanks, 877 F.3d at 1040.

As I explain below, the plurality's interpretation of class certification prerequisites renders

the Federal Circuit's comments in Ebanks largely meaningless. The plurality's reading of the

commonality requirement makes it functionally impossible to certify a class in many delay claims.

That position is entirely at odds with the Federal Circuit's comments in both Ebanks and Monk.

Before exploring this topic of disagreement, however, I take a brief detour to discuss the portions

of the plurality opinion with which I strongly agree.

48

One should not take this comment out of context. The reality that each petitioner has his or her story does

not mean that the proposed class lacks commonality. I explain why that is so in detail below.

19

II. IMPORTANT AREAS OF AGREEMENT WITH THE PLURALITY

While, as I explain below, I strongly disagree with the plurality's conclusion that the

proposed class does not satisfy the commonality requirement, I want to be entirely clear about my

agreement with the plurality on several important matters.

First, the Court's decision to unequivocally embrace its power to use the class action device

in connection with petitions seeking extraordinary writs is groundbreaking.49 I agree entirely with

this holding. In appropriate cases, aggregate resolution of issues will allow the Court to address

systemic problems in the VA system and more fully protect the rights of the men and women who

served our Nation. The import of this portion of the plurality's opinion cannot be overstated.

I would expressly do one thing in this regard that the plurality does not. I would

unequivocally overrule Harrison v. Derwinski, 1 Vet.App. 438 (1991) (en banc). Nearly three

decades ago in Harrison, this Court held that it would not utilize class actions. Id. at 438-39. It did

so for three reasons: (1) The Court did not have the authority to do so; (2) class actions would be

unmanageable in an appellate court setting; and (3) class actions were unnecessary because the

Court has the power to issue precedential decisions. Id. To the extent that Harrison was ever

correct, its time in the sun has passed.

The Federal Circuit has clearly held that Harrison's first reason (lack of authority) is

incorrect. Monk, 855 F.3d at 1322 ("We hold that the Veterans Court has the authority to establish

a class action mechanism or other method of aggregating claims."). I also believe that the Federal

Circuit rejected (at the very least implicitly) the other two reasons, manageability and the

availability of precedential decisions, as categorical bases for not adopting a class action device.

See, e.g., id. at 1320 (discussing Harrison). But even if it has not rejected those reasons, those

reasons cannot retain any viability given the Court's holding today that it will entertain class actions

in certain appropriate matters. Harrison cited manageability and precedential opinions as part of

its categorical rejection of class actions also. 1 Vet. App. at 438-39. Given the Court's decision

today that there is no such categorical bar—at least with respect to petitions—Harrison cannot

remain the law. We should remove any doubt on that score and expressly overrule it.

This is not to say that manageability and the use of precedential opinions have no relevance

to whether a class action is appropriate in a specific matter; of course they do. They just no longer

serve as a complete bar to using the class action procedure. 50 I return to these matters below. See

infra part III(d).

49

As does the plurality, I leave for another day whether the class action device is an appropriate procedural

vehicle in the context of an appeal. See ante at 2 n.4.

50

My point about clearly overruling Harrison is not a mere technicality. Harrison was an en banc decision

of the Court. As such, it is binding on all panels. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992). If the second

and third Harrison categories remain viable in the way Harrison described them, future panels must categorically

reject class actions. As I explained, I do not think that is a tenable position given both the Federal Circuit's decision in

Monk and our decision today. If that is correct, there simply is no reason to leave the procedural question of Harrison's

continued viability ambiguous.

20

Second, the Court wisely adopts Rule 23 as a guide (at least for now) in terms of using the

class action device. Rule 23 has a long history in the Federal courts and our fellow Federal judges

(as well as lawyers and law professors) have generated many resources for the Court to use as it

embarks on this endeavor. The Court quite rightly recognizes that there is no need for it to go on

this journey alone.

I pause to underscore one important point about using Rule 23 as a guide. That rule was

adopted for, and has been used by, Federal district courts. Clearly, certain portions of the rule

simply will not apply here, for example monetary-based classes under Rule 23(b)(3). There is no

reason to conclude that the Court's use of Rule 23 as a guide means that all interpretations of that

rule in the trial court setting necessarily apply here. Our Court is unique in many ways, one of

them now being that it will be an appellate body using the class action device. Given this

uniqueness, the Court should independently assess on a case-by-case basis whether a given

interpretation of a provision of Rule 23 makes sense at this Court.51 After all, a guide is merely

that.

To repeat, these matters with which I agree are truly significant. The disagreement I have

with the plurality—to which I turn now—should not obscure that point.

III. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS FOR

CERTIFICATION.

The proposed class in this case satisfies all the prerequisites for certification under the

guidance of Rule 23(a) and fits comfortably into the functional category Rule 23(b)(2) defines.

The plurality concludes that the class should not be certified because it does not satisfy the

commonality requirement of Rule 23(a)(2). See ante at 12. I first explain why that determination

is incorrect. After that, I proceed to address the remaining factors under Rule 23(a) as well as the

requirements of Rule 23(b)(2). Finally, I briefly consider why manageability concerns and the

availability of precedential decisions do not counsel against class action treatment.

A. The proposed class satisfies the commonality requirement.

The plurality's conclusion that the proposed class fails to satisfy the commonality

requirement of Federal Rule of Civil Procedure 23(a)(2) is incorrect. 52 The plurality reasons that

51

To the extent that portions of Rule 23 have constitutional underpinnings, the Court would be bound to

apply those principles.

52

As I noted above, there is no reason that the Court need adopt all non-constitutionally based interpretations

of Rule 23 when using its provisions as a guide. In an appropriate case, I would be open to considering whether the

commonality requirements the plurality derives from Wal-Mart v. Dukes, 564 U.S. 338 (2011), see ante at 7, should

apply in matters before this Court. Other courts have done the same in circumstances in which Rule 23 did not

technically apply but provided potential guidance. See, e.g., Essame v. SSC Laurel Operating Co. LLC,

847 F. Supp. 2d 821 (D. Md. 2012) (declining to apply Wal-Mart and noting that "Rule 23 standards are generally

inapplicable to [Fair Labor Standards Act] collective actions."). Because, as I explain below, this proposed class

satisfies Wal-Mart's heightened commonality standard, I leave that matter for another day. I do note here that the

Supreme Court's conclusion about commonality in Wal-Mart has been the subject of sustained criticism. See, e.g.,

Robert H. Klonoff, The Decline of Class Actions, 90 WASH. U. L. REV. 729, 776 (2013) (noting that "[t]he majority

21

commonality is lacking because "[t]here is no common question for the petitioners' and putative

class's cause of delay." Ante at 12.

Although the plurality accurately recites the Supreme Court's most recent comprehensive

description of the commonality requirement in Rule 23(a)(2), see ante at 7 (discussing Wal-Mart),

it has misconstrued that decision and erected too high a bar for finding commonality. Most

critically for today's decision, the Supreme Court noted that it was not the common questions that

truly mattered for class certification purposes, but rather whether there were common answers to

such questions sufficient to "resolve an issue that is central to the validity of each one of the claims

in one stroke." Wal-Mart, 564 U.S. at 350. In other words, if there is no common thread connecting

the class members' claims such that pulling that thread will affect each class member, the class is

insufficiently cohesive to warrant class treatment. See id. at 352 ("Without some glue holding the

alleged reasons for all those decisions together, it will be impossible to say that examination of all

class members' claims for relief will produce a common answer to the crucial question why was I

disfavored." (emphasis in original)). The Supreme Court made clear that there need be only one

common question, the answer to which drives the litigation in order to satisfy Rule 23(a)(2). Id.,

564 U.S. at 359. The plurality does not give sufficient weight to this part of the Supreme Court's

discussion in Wal-Mart.53

The task, then, is to consider whether the petitioners' claims have in common the answer

to at least a single question that would drive the litigation as to each member of the proposed class.

How does one go about this task? This is where things get a bit slippery.

The "slipperiness" concerns how much a court should consider the merits of a claim at the

class certification stage. As I will explain, the answer is "enough, but not too much." To start, there

is no question that a court must consider the merits in some measure as part of the class certification

inquiry. See ante at 6 (discussing overlap between certification and merits). As the Supreme Court

noted in Wal-Mart, "[f]requently [the] rigorous analysis [required for class certification] will entail

decision in Dukes cannot be squared with the text, structure, or history of Rule 23(a)(2)"); Joseph A. Seiner,

Weathering Wal-Mart, 89 NOTRE DAME L. REV. 1343, 1365-68 (2014) ("[T]he [Wal-Mart] decision omits [] any

discussion of the vast majority of class action cases that look nothing like Wal-Mart at all. . . . This is likely because

the decision was really only intended to apply to the Wal-Mart situation itself."); A. Benjamin Spencer, Class Actions,

Heightened Commonality, and Declining Access to Justice, 93 B.U. L. REV. 441, 444-45 (2013) ("Rule 23(a)'s

commonality language says nothing of the nature or import of the legal or factual questions that class members' claim

must share, nor does it mandate that class plaintiffs be bound together by the 'same injury'").

53

As I explain above, the plurality does not accept the petitioners' legal theory, leading the plurality to focus

on the various reasons why a claim may be delayed. See ante at 8. In recasting the petitioners' actual claim in this way,

the plurality has obscured the common questions the class members share, questions that would advance the resolution

of the claim of each and every class member. In doing so, the plurality also engrafts onto Rule 23(a)(2) a requirement

found only in Rule 23(b)(3), namely that common issues predominate over individual ones. FED. R. CIV. P. 23(b)(3)

(providing that to certify a class under that provision of the rule a court must find "that the question of law or fact

common to the class members predominate over any questions affecting only individual members"). Justice Ginsburg

made the same argument in her Wal-Mart dissent. 564 U.S. at 375-77 (Ginsburg, J., dissenting). Justice Scalia rebuffed

the charge because, he said, the Supreme Court majority highlighted the dissimilarities in plaintiffs' claims because

there was nothing left that could serve as the glue to hold the class claims together. Id. at 359 ("We consider

dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in

order to determine (as Rule 23(a)(2) requires) whether there is even a single common question. And there is not here."

(internal punctuation removed; emphasis in original)).

22

some overlap with the merits of the plaintiff's underlying claim." 564 U.S. at 351 (internal

quotation marks omitted). This makes perfect sense. As the Supreme Court explained in an earlier

decision, "the class determination generally involves considerations that are enmeshed in the

factual and legal issues comprising the plaintiff's cause of action." Gen. Tele. Co. of Sw. v. Falcon,

457 U.S. 147, 160 (1982).

At the same time, however, it is not appropriate for a court to base its class certification

decision on the ultimate merits of the underlying claims. See, e.g., Amgen Inc. v. Conn. Ret. Plans

& Trust Funds, 568 U.S. 455, 466 (2013) ("Rule 23 grants courts no license to engage in free-

ranging merits inquiries at the certification stage."); Messner v. Northshore Univ. HealthSystem,

669 F.3d 802, 811 (7th Cir. 2012) ("[T]he court should not turn the class certification proceeding

into a dress rehearsal for the trial on the merits."). This too makes sense. It would be strange indeed

if a court could say "the plaintiff wins on the merits, therefore the class is certified" or vice versa.

The merits must be considered not in the same way they would be to resolve the case—that is, to

determine whether one side prevails or not. As the Supreme Court made clear after Wal-Mart:

"Merits questions may be considered to the extent—but only to the extent—that they are relevant

to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen,

568 U.S. at 466 (citing Wal-Mart, 564 U.S. at 352 n.6).

An analogy may help illustrate how the commonality inquiry works as well as highlight

the error in the plurality's reasoning. Assume that each class member's claim is a small boat floating

on the water in a pool. The commonality inquiry (for this metaphorical pool) is trained on whether

there is a single action that will cause the pool to drain or fill such that all the boats will move

together. If there is, there is commonality among the boats because there is a single action that

affects them all "in one stroke." See Wal-Mart, 564 U.S. at 350. This inquiry is entirely agnostic

as to whether the boats rise or fall. See Amgen, 568 U.S. at 459 (stating, in the analogous setting

of determining whether common questions predominate over individual ones, that one asks only

if there are common questions "not that those questions will be answered, on the merits, in favor

of the class."). The key is that the single action makes them all move.

The analysis is the same if we substitute the far more serious claims these putative class

members possess for our fictional boats. Each of the class members' claims depends on the

contention that the veteran simply has waited too long for resolution of his or her claim for benefits,

no matter what the reason. In other words, there is systemic failure. We must then determine

whether there is anything we can ask such that an answer will "in one stroke" affect each claim

(i.e., can we make the water move in such a way that each claim rises or falls). See Wal-Mart,

564 U.S. at 350. There most certainly is a question we can ask. In fact, there is more than one

question (although, as mentioned above, one is all that is necessary).

To understand why this is so, we need to recall the gravamen of the petitioners' claims.

They assert that the delays in the VA benefits system are both unconstitutional and "unreasonable"

no matter the reason. Amended Pet. at ¶¶ 30-48. The marker petitioners set for when delay becomes

unconstitutional and/or unreasonable is 1 year from the filing of an NOD and the issuance of a

Board decision. Id. at 19 (taking into account the petitioners' oral argument clarification). On these

allegations, common questions under Wal-Mart abound.54

54

I focus on the petitioners' constitutional claims. It is easy to read Martin as requiring the assessment of the

23

First, the Court could answer the question: How long is too long under the Constitution's

Due Process Clause? The petitioners may not be correct as a matter of law that 1 year between an

NOD and a Board decision is constitutionally problematic. Or they may be correct that the

Constitution does not abide that delay. Or the Court could approach the matter in a way akin to

courts that have considered whether a given system was structured in such a way that it exposes

participants to too great a risk of constitutional harm.55 Here, it might be that the petitioners cannot

convince the Court that the VA system contains too great a risk of constitutional harm. Or maybe

they will convince us that it does.

Second, the Court could decide whether a 1-year delay between the filing an NOD and the

rendering of a Board decision is "unreasonable," regardless of the constitutional boundary. 56 In

other words, the Court could avoid the constitutional question entirely. See Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("The Court will not pass upon

a constitutional question although properly presented by the record, if there is also present some

other ground upon which the case may be disposed of.").

As both the plurality, see ante at 8, and Chief Judge Davis, see ante at 15, n.36 (Davis,

C.J., concurring), note, the Federal Circuit recently issued a decision that has implications for the

petitioners' statutory claim. Martin v. O'Rourke, 891 F.3d 1338 (Fed. Cir. 2018).57 The Martin

court concluded that this Court has been employing an incorrect standard for assessing whether

claimed delay by the Secretary is unreasonable. Id. at 1348. In particular, the Federal Circuit

instructed that this Court should address claims of unreasonable VA delay using a six-part standard

first articulated by the D.C. Circuit in Telecomm. Research & Action Center. v. FCC ("TRAC"),

750 F.2d 70 (D.C. Cir. 1984). Martin, 891 F.3d at 1344.

The plurality seems to suggest that the Federal Circuit's embrace of the TRAC standard for

assessing agency delay undercuts commonality. See ante at 10-11; see also ante at 15 (Davis, C.J.,

concurring). This is not so. It may be that the adoption of the TRAC standard in place of the one

this Court used in the past will have an effect on the substantive outcome of the petitioners' claims.

reason for delay in all cases as part of a determination of whether such delay is unreasonable. If that were the case,

the claim is far closer to Wal-Mart calling commonality into question. Of course, given the unexplored nature of the

standard Martin adopted for assessing VA delays, one could still argue that there are common questions. However, I

leave that issue for another day.

55

Such claims of systemic constitutional harm have often been resolved in class action proceedings both

before and after Wal-Mart. See, e.g., Brown v. Plata, 563 U.S. 493 (2011) (Eighth Amendment claims concerning

prison overcrowding); Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) (Eighth Amendment claims concerning systemic

deficiencies in prison provision of medical and dental care); Blankenship v. Sec'y of HEW, 587 F.2d 329 (6th Cir.

1978) (constitutional and statutory claims concerning delays in receiving hearing before the Social Security

Administration); Brown v. Guiliani, 158 F.R.D. 251 (E.D.N.Y. 1994) (in addition to statutory claims, allegations of

due process violations concerning timely processing of applications for public benefits).

56

As with constitutional claims, courts have also certified classes in the context of claims of systemic

violations of statutory rights both before and after Wal-Mart. See, e.g., DL v. D.C., 860 F.3d 713 (D.C. Cir. 2017)

(claims concerning violations of, among other things, the Individuals with Disabilities in Education Act and the

Rehabilitation Act); Blankenship, 587 F.2d at 329; Brown, 158 F.R.D. at 251.

57

While the petitioners in Martin also raised constitutional claims, the Federal Circuit declined to address

them. Id. at 1348-49.

24

But to reach that substantive outcome, the Court will need to address many questions about how

this standard applies. For example, how does the standard apply in the context of a claim, such as

the petitioners' here, that delay on an aggregate basis is simply too great. Martin did not purport to

have resolved those questions.

The critical thing about all these questions (both as to the Constitution and the statute) is

that they are the same for every person who is a member of the class. Just as the boats in the pool

will rise or fall all at once if we can affect the water level, the answers to these questions will make

the petitioners' claims rise or fall together. The class members will win or lose once we have an

answer. And it makes no difference whatsoever under Rule 23(a)(2) whether the answer leads to

a win for all or a loss for all. The key point—the one at the core of commonality—is that the

answer is for all. See Amgen, 568 U.S. at 460 (noting in a securities fraud case that, on the issue

of materiality, "the class is entirely cohesive: It will prevail or fail in unison.").

Wal-Mart itself is not to the contrary. In fact, it actually reinforces why the scenario the

Court confronts here presents common questions. Wal-Mart concerned claims by female

employees that Wal-Mart unlawfully discriminated against them on the basis of sex, including

denying equal pay and promotion opportunities. 564 U.S. at 343. The Wal-Mart plaintiffs based

their claims on Title VII of the Civil Rights Act of 1964. Id. The Supreme Court determined that

these allegations did not create a common question under Rule 23(a)(2). Id. at 359.

The critical point is why there was no commonality. In the context of employment

discrimination claims, there was no question that, when the Supreme Court announced its decision,

the reasons for employment actions mattered in terms of their legality. See id. at 352 (noting that

"the crux of the inquiry [concerning plaintiffs' unlawful employment discrimination claims] is 'the

reason for a particular employment decision'" (quoting Cooper v. Fed. Reserve Bank of Richmond,

467 U.S. 867, 876 (1984))). The plaintiffs in Wal-Mart did not have an absolute and unqualified

right to be promoted. They merely had a right to not be passed over for promotion for an unlawful

reason or otherwise treated differently than their male coworkers.58 The facts in Wal-Mart did not

provide for a common question because Wal-Mart had a decentralized process for making the

relevant decisions. Id. at 353-60. And because Wal-Mart did not have a centralized process for

making promotion and pay decisions, there was no question that could drive resolution of the class

members' claims overall.

But that is not the situation here. Every—I stress, every—member of the putative class has

a constitutionally protected right to procedural due process with respect to their benefits

application. Cushman, 576 F.3d at 128. And every member of the class has the right to seek the

Court's assistance to compel the Secretary to take action unreasonably delayed. 38 U.S.C.

58

The Secretary misses the importance of the difference between an area of the law in which the reasons for

actions matter—such as employment discrimination law in Wal-Mart—and the petitioners' claims here that some

quantum of delay is simply too long, period. Thus, the Secretary's response to the request for class certification often

does not address the real thrust of the commonality argument. See, e.g., Secretary's Response to Amended Pet. at 14

("There are countless individual factors that determine the length of time it takes for a claim to work its way through

the legacy appeals system, and there is not a single action or policy within the Secretary's unilateral control that could

alleviate the delays therein."), 15 ("Here, there is simply no common cause for the total amount of time that passes

during a legacy appeal and there can be no common answer as to whether a violation . . . occurred such that entitlement

to a writ is clear and indisputable."). As I explain, the plurality makes the same error as the Secretary.

25

§ 7261(a)(2). Neither of these rights is tied to an individualized reason for deprivation or delay–or

at least not so under clearly established law. This is the critical distinction between Wal-Mart and

the petitioners' case that the plurality misses.

It does not matter that there is uncertainty about what the outer limit for constitutional

adjudication might be, whether, in fact, the VA adjudication system imposes too great a risk of

unconstitutional delay on claimants, or whether the 1-year delay is "unreasonable." These

uncertainties are also questions that are common to the class. Is "too long" 1 year, 2 years, 20

years, or something else? Who knows at this stage? But what is certain is that those questions—

collectively and individually—are common to the class. Again, their boats will rise or fall together

based on the answer(s). That is all that is required under Rule 23(a)(2), its commonality principle,

and Wal-Mart.

The plurality's reasoning is based on a flawed understanding of the petitioners' claims. The

plurality insists that the petitioners must identify the causes for the delay to prevail. See, e.g., ante

at 9. In framing the issue in that way, the plurality is able to make this case look like Wal-Mart,

where the reasons for an action were dispositive.

The fundamental problem with the plurality's reasoning for rejecting commonality is that

it is not based on the petitioners' theory of the case. Their theory is that there is a period of time

that is simply too long for a claimant to wait for a decision. It appears that such a theory finds some

support in existing law, at least tangentially. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 547 (1985) (suggesting in the context of a post-deprivation hearing case that "[a]t some point,

a delay in the post-termination hearing would become a constitutional violation"). But even if, in

the end, this Court were to reject the legal theory petitioners advance and hold substantively that

there is no absolute time within which an administrative adjudication must be completed, that too

is a question common to the class. Every member of the class would lose.59

The plurality states that I have reframed the petitioner's claim because the petitioners have

argued that 1 year is too long. See ante at 9 n.16. It is true that the petitioners have argued that the

period that is too long under the Due Process Clause is 1 year. But that argument does not undercut

the commonality that exists with respect to the constitutional question. Indeed, if anything it

augments it.

To address the petitioners' constitutional claim, the Court would need to assess first

whether there is an outer limit for Agency adjudication and second, if there is, whether the

petitioners are correct that 1 year is too long. It may be that the answer to either the first or second

question is no. But if that is the case, the answer would be the same for every member of the

proposed class.

59

This is not to say that the reason for delay would never matter. Certainly, if there were some "good" reasons

for a slow process, for example, compliance with the duty to assist, that could be considered as part of the flexible

balancing process used under the Due Process Clause. This appears to be what was done in Federal Deposit Insurance

Corp. v. Mallen, 486 U.S. 230 (1988), which the plurality cites. The Supreme Court there considered reasons for delay

as part of a merits determination, not as part of a class certification determination. The same would be true here

because, had we reached the merits, the various reasons for delay could have been used in determining at what point

to draw the constitutional line concerning how much delay is too much as an absolute matter.

26

In the end, I fear that what is really happening here is that the Court is—consciously or

unconsciously—making constitutional and statutory rulings that have quite dramatic implications

for the VA system without making it clear that it is doing so. We can debate whether the

Constitution and/or the statutory scheme sets an outer limit on adjudicatory time and, if it does,

what that limit is. That is a debate worth having and one that we, as Judges, should have. But

today's decision masks that debate behind a veil of procedure. I like procedure as much as the next

person—likely more. But procedure should never serve to implement a substantive result without

open debate. We should have a full and open discussion about these incredibly difficult and

important constitutional and statutory issues. The answers to these questions are not clear. But the

one thing that is clear is that those answers—whatever they are—are common to the putative class.

I believe the plurality is wrong in concluding they are not and, therefore, I respectfully dissent

from its commonality conclusion.

B. The proposed class satisfies the other rule 23(a) prerequisites.

Given its conclusion on commonality, the plurality had no need to consider the other

prerequisites for class certification. Because I conclude that Rule 23(a)(2)'s commonality

requirement is satisfied here, I will explain why the proposed class also satisfies the other parts of

Rule 23(a).

1. Rule 23(a)(1)–Numerosity

Class action treatment is appropriate only so long as the proposed class is "so numerous

that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). The Secretary concedes that

the proposed class satisfies this requirement. See Secretary's Response to Amended Pet. at 11-12.

I agree that the requirement is met because there are clearly thousands (most likely hundreds of

thousands) of claimants who fit within the class definition. The proponent of the class need not

establish the exact number of members. See, e.g., Hinman v. M&M Rental Ctr., Inc., 545 F. Supp.

2d 802, 806 (N.D. Ill. 2008) ("[P]laintiffs are not required to allege the exact number or identity

of the class members, and may make common sense assumptions in determining numerosity.").

While there is no bright line rule that establishes numerosity, the class proposed in this action

clearly satisfies that requirement under any standard. See, e.g., Cox v. Am. Cast Iron Pipe Co.,

784 F.2d 1546, 1553 (11th Cir. 1986) (generally, fewer than 21 members are inadequate while

more than 40 satisfy the numerosity requirement).

2. Rule 23(a)(3)–Typicality

Certification also requires that "the claims or defenses of the representative parties are

typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). The central thrust of the

typicality requirement is that a class representative's interests are substantially aligned with the

interests of the absent class members. See, e.g., Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th

Cir. 2006); Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). In other words, the

typicality requirement ensures that "in pursuing his own claims, the named plaintiff will also

advance the interests of the class members." In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir.

1996). As the United States Court of Appeals for the Sixth Circuit has colorfully stated, "[t]he

27

premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so

go the claims of the class." Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998).

It is also clear that, while distinct, the typicality requirement overlaps with certain other

Rule 23(a) characteristics. In particular, "[t]he commonality and typicality requirements of Rule

23(a) tend to merge." Falcon, 457 U.S. at 157 n.13; see also Milonas v. Williams, 691 F.2d 931,

938 (10th Cir. 1982) (same).60 Given this merging, it is not surprising that the extensive analysis

of commonality set out above provides a roadmap for why the typicality requirement is also

satisfied here. In the typicality analysis, the key inquiry is framed as whether the class

representatives' claims arise from the same course of conduct as the absent class members' claims

and flow from the same legal theory. See, e.g., In re Drexel Burnham Lambert Grp., Inc., 960 F.2d

285, 291 (2d Cir. 1992); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.

1983). This is, in many respects, no different materially than asking whether there are common

answers to questions that will drive the litigation.

Here, the typicality standard is satisfied in the same functional way as is the commonality

requirement. The petitioners' claim is that the VA benefits system as designed and implemented

leads to delays that are unlawful no matter the reason. Amended Pet. at ¶¶ 30-48. They have set

the relevant period as the time between the filing of an NOD and a Board decision. Id. (and as

clarified at oral argument). As the petitioners have framed them—the relevant inquiry for

typicality—the named class representatives' claims arise from precisely the same course of conduct

as do the claims of all the absent class members and all the claims rely on the same legal theory.

This is all that is required for typicality. There is no question here that "as go[] the claim[s] of the

named [petitioners], so go the claims of the class." Sprague, 133 F.3d at 399.

The Secretary's arguments to the contrary, see Secretary's Response to Amended Pet. at

18-22, fail for the same reason his commonality arguments do. Fundamentally, the arguments are

all based on the premise that the reasons for VA delays are relevant to the petitioners' claims. But

that is just not the case on the legal theories the petitioners advance. The class representatives

satisfy the typicality requirement under Rule 23(a)(3).

60

The typicality requirement also tends to merge with the adequacy-of-representation requirement under

Rule 23(a)(4). See, e.g., Falcon, 457 U.S. at 157 n.13; Weiss v. York Hosp., 745 F.2d 786, 809 (2d Cir. 1984). I discuss

the adequacy of representation prong below.

28

3. Rule 23(a)(4)–Adequacy of Representation

Finally, a class may be certified only if "the representative parties will fairly and adequately

protect the interests of the class." FED. R. CIV. P. 23(a)(4). "The requirement of adequate

representation is a creature of due process that exists in class actions and other representational

lawsuits where parties stand in judgment on behalf of others." PRINCIPLES OF THE LAW OF

AGGREGATE LITIGATION § 1.05 cmt. c; see U.S. CONST., amend. V ("No person shall . . . be

deprived of life, liberty, or property, without due process of law."). Given the importance of the

interest the adequacy-of-representation-requirement protects, class representatives are essentially

treated as acting as fiduciaries with respect to the absent class members. See Kirkpatrick v. J.C.

Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987); Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.

1983); see also PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 1.04 cmt. a, Reporter's

Notes.

Consistent with this fiduciary role, "[t]he adequacy inquiry under Rule 23(a)(4) serves to

uncover conflicts of interest between named parties and the class they seek to represent." Amchem,

521 U.S. at 625; see also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000)

("It is axiomatic that a putative representative cannot adequately protect the class if his interests

are antagonistic to or in conflict with the objectives of those he purports to represent."). A conflict

sufficient to negate the adequacy of representation may not be "merely speculative or

hypothetical." Ward v. Dixie Nat'l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010). The conflict

must be a fundamental conflict, and a conflict is "not fundamental when . . . all class members

share common objectives and the same factual and legal positions [and] have the same interest in

establishing liability." Id. So long as there is no such fundamental conflict, a "strong overlap of

interests" is all that is required. PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 1.05 cmt. a,

Reporter's Notes. Absent unusual circumstances, only one class representative must satisfy the

adequacy requirement. Grasty v. Amalgamated Clothing & Textile Workers Union, AFL-CIO,

CLC, 828 F.2d 123, 128 (3d Cir. 1987).

Here, the class representatives satisfy the adequacy-of-representation requirement of Rule

24(a)(4). The named petitioners and the class share the same claims both factually and legally.

Again, those claims may not be legally sustainable as framed, but they are the same. There is no

realistic suggestion of a conflict between any of the named petitioners and the class. There is also

no indication that any named petitioner would be "antagonistic" toward the class. In sum, the facts

show the named petitioners will be fiduciaries for the class. Thus, the petitioners satisfy the

requirements of Rule 23(a)(4).

Although not directly called for by Rule 23(a)(4), the adequacy prong also historically

included consideration of the adequacy of class counsel. See, e.g., Retired Chi. Police Ass'n v. City

of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). This is technically no longer the case today. "Although

questions concerning the adequacy of class counsel were traditionally analyzed under the aegis of

the adequate representation requirement of Rule 23(a)(4) of the Federal Rules of Civil Procedure,

those questions have, since 2003, been governed by Rule 23(g)." Sheinberg v. Sorensen, 606 F.3d

130, 132 (3d Cir. 2010); cf. Johnson v. Nextel Commc'ns., Inc., 293 F.R.D. 660, 672 (S.D.N.Y.

2013) ("Formerly an element of Rule 23(a)(4), this [adequacy-of-counsel] requirement is often

still considered as part of the Court's 23(a)(4) adequacy analysis.").

29

Rule 23(g) provides a set of factors a court must consider when determining whether class

counsel is adequate. FED. R. CIV. P. 23(g)(1)(A)(i)-(iv). The factors are counsel's (i) work done in

investigating and developing the claims; (ii) experience in both class actions and the substantive

claims at issue; (iii) relevant legal knowledge; and (iv) willingness to commit sufficient resources

to prosecuting the action. The rule makes clear that a court is not limited to the specifically

enumerated factors and "may consider any other matter pertinent to counsel's ability to fairly and

adequately represent the interests of the class." FED. R. CIV. P. 23(g)(1)(B).

Proposed class counsel in this action are clearly adequate under Rule 23(g)'s standards. The

proposed class counsel are (1) the law firm Simpson Thacher & Bartlett LLP (STB) and (2) the

Veterans Legal Services Clinic, a part of the Jerome N. Franks Legal Services Organization at

Yale Law School. (Yale-LSO). Counsel have done extensive work developing the claims at issue.

The documents submitted in this Court and to the Federal Circuit make that apparent. Similarly,

when the experience of STB and Yale-LSO are combined, the knowledge of class action and

veterans law bases are covered. As is the requirement that counsel display "relevant legal

knowledge." The commitment of these entities also suggests that they have and will continue to

support the litigation with sufficient resources. Therefore, and considering that there are no other

"matters pertinent to counsel[s'] ability to fairly and adequately represent the interests of the class,"

id., I would conclude counsel are adequate and formally appoint them to represent the class. See

FED. R. CIV. P. 23(g)(1) ("Unless a statute provides otherwise, a court that certifies a class must

appoint class counsel.").61

C. The proposed class may be maintained under Rule 23(b)(2).

Rule 23(a) focuses on whether a class has the characteristics to justify aggregate treatment.

But even if a group has those attributes, a class action is appropriate only if it serves a specific

function. That is where Rule 23(b) comes into play. Rule 23 itself has three sub-parts, only one of

which is relevant to proceedings before this Court.

Rule 23(b)(2) provides that a class action is appropriate when "the party opposing the class

has acted or refused to act on grounds that apply generally to the class, so that final injunctive or

corresponding declaratory relief is appropriate respecting the class as a whole." As the Supreme

Court has explained, Rule 23(b)(2) requires that "a single injunction or declaratory judgment . . .

provide relief to each member of the class." Wal-Mart, 564 U.S. at 360. Thus, if there are class

members who would not benefit from a class-wide injunction (or declaration), certification under

Rule 23(b)(2) would not be appropriate. See Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018)

(commenting, in action concerning claims for periodic bond hearings for certain people detained

under the immigration laws, that because some members of the class may not be entitled to such

hearings under the Constitution, certification under Rule 23(b)(2) might be inappropriate).

61

The Secretary suggests that "it is unclear whether Petitioners' counsel are adequate representatives for the

interest of the absentee class members." Secretary's Response to Amended Pet. at 24. The Secretary may disagree with

the legal theory the petitioners advance, see id. at 24-25, but to argue that a prominent national law firm with extensive

class action experience and Yale Law School are not "adequate" as counsel in this case is entirely frivolous.

30

None of this affects certification in this matter because, using Rule 23(b)(2) as a guide,

should the class prevail on the merits, the very nature of the petitioners' claims means that every

person in the class would be entitled to enforce an injunction. The claims here do not require an

assessment of why there has been delay. Instead, all that is necessary is that there has been a certain

magnitude of delay. So, any member of the class would by the nature of the class definition have

experienced the delay and, therefore, would be entitled to enforce any injunction that might be

entered based on the claims.

The plurality concludes that the proposed remedy–a direction to the Secretary to render a

decision within 1 year of submission of an NOD–does not fall within the ambit of Rule 23(b)(2).

See ante at 13. That conclusion is infected with the same defect that infects the plurality's

commonality analysis. The plurality concludes that an order to the Secretary would have to "be

individualized and tailored to the needs of individual veterans." Ante at 13. But that is so only if

the reason for a delay matters on the petitioners' theory. Because it does not, the plurality's

conclusion that Rule 23(b)(2) would not apply is erroneous.

As with his response to commonality, the Secretary similarly misapprehends the legal

underpinning of the petitioners' claims by assuming one must know the reason for delay. As a

result, his arguments concerning Rule 23(b)(2) often don't address the situation we actually face

here. See, e.g., Secretary's Response to Amended Pet. at 25 ("Put otherwise, Petitioners identify a

common effect they wish to change, but do not identify a uniform cause therefor."). Making

essentially the same mistake just in a different way, the Secretary asserts that certification under

Rule 23(b)(2) is inappropriate because "[p]etitioners do not identify any specific act or refusal to

act by the Secretary that could be 'enjoined or declared unlawful' for the entire class." Id. But this

is not so. If the petitioners are correct that the delays in the current system are just too great, the

order to the Secretary would be to ensure that class members not experience that level of delay. It

would be up to the Secretary to determine how to comply. And the key here is that the order would

apply to everyone in the class. Certification under Rule 23(b)(2) is entirely appropriate.62

62

I would also hold that, using Rule 23(b)(2) as a guide, there is no need to allow class members the

opportunity to "opt out" of the class. See FED. R. CIV. P. 23(c)(2) (providing for right to exclusion only in classes

certified under Rule 23(b)(3)); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990) (a class certified under

Rule 23(b)(2) generally does not require an opt out provision). This makes sense because the nature of the relief is

indivisible in that it applies to every member of the class even if he or she opted out of the class. See In re Allstate Ins.

Co., 400 F.3d 505, 506 (7th Cir. 2005) (commenting that "[t]he thinking behind this distinction [concerning opt out]

is that declaratory and injunctive relief will usually have the same effect on all members of the class as individual suits

would."). I would also hold that while notice is not required to class members at certification, see FED. R. CIV. P.

23(c)(2)(A) (making notice in a (b)(2) action optional), notice should generally be provided. However, that notice

need not be individualized in the sense that notice by publication on a website or through veterans service

organizations would suffice. I would have directed the parties to prepare a notice in this case for the Court's approval.

31

D. Manageability and Precedential Decisions63

As I noted above, I would expressly overrule Harrison. However, I would not discard the

concepts of manageability or the availability of precedential decisions that Harrison discussed in

connection with the certification of a class. Rather, I would address these matters on a case-by-

case basis when making an individualized determination whether a particular class should be

certified. In this case, manageability concerns and the availability of precedential decisions do not

counsel against using the class action procedure.

Turning first to manageability, there is little if anything in proceeding as a class in this case

that would cause the matter to be any more or less manageable than addressing these claims in

individual petitions. The questions the petitioners pose are almost entirely legal in nature. They

assert that the VA benefits system causes (or places them in an unreasonable risk of suffering)

harm because the delay they face is unreasonable and unconstitutional. See Amended Pet. at ¶¶

30-48. The assessments of these claims are the same for each member of the class. Moreover, there

does not appear to be the need for much, if any, "discovery," that is, information gathering. Even

if there would be the need for some information gathering (for example, acquiring updated

statistics concerning delays between different stages of the administrative appellate process), this

discovery would not likely impose any meaningful burden on the parties or the Court. And in delay

cases in particular, it appears the Federal Circuit has recognized that class resolution may, in fact,

be the best means of proceeding. See Ebanks, 877 F.3d at 1040; Monk, 855 F.3d at 1320-21.

The availability of the option to issue a precedential decision also does not counsel against

the use of a class action in this case. A precedential decision certainly binds VA. But a precedential

decision does not give a person who is not a party to that case a right to enforce a decision without

instituting a separate action. If that person were a certified class member, however, he or she would

have an enforceable right subject to contempt.64 Thus, an enforceable order makes a meaningful

difference here. Once again, it also appears that the Federal Circuit would agree. See Monk,

855 F.3d at 1321 (commenting on the small number of precedential decisions of this Court and

suggesting that the class action device would address this issue).

63

Consideration of these factors in connection with class certification underscores why the Court should not

adopt Rule 23 mechanically. The availability of precedential decisions would never apply to a United States District

Court when deciding whether to certify a class. So, it makes sense that that issue is not contemplated in Rule 23.

Manageability is a concern under Rule 23, but it is specifically limited to classes certified under Rule 23(b)(3). See

FED. R. CIV. P. 23(b)(3)(D) (specifying that a consideration for certifying the claim is "the likely difficulties in

managing a class action."). But manageability clearly matters at our Court given its appellate nature.

64

This is not an abstract difference. For example, this Court held in a precedential decision that VA had

inappropriately denied reimbursement for emergency care obtained outside the VA healthcare system. Staab v.

McDonald, 28 Vet.App. 50 (2016). This was a significant decision, but VA did not even publish an interim final rule

attempting to implement the decision until January 9, 2018. See 83 Fed. Reg. 974 (2018) (amending 38 C.F.R. §

17.1002(f)). Staab may have bound VA, but that certainly rings hollow for veterans who have received nothing in the

2 years that have passed since the Court's decision.

32

IV. CONCLUSION

In many respects, I conclude where I began. This is a truly significant day for the Court.

To that extent, I agree with Chief Judge Davis. See ante at 15 (Davis, C.J., concurring). We have

held that the Court will use aggregate resolution procedures in appropriate cases initiated by a

petition. This decision has been decades in coming and holds great promise a means to address

systemic problems in the VA system. I wholeheartedly join the Court in this decision. I believe the

Court, however, misses an opportunity by failing to certify this class. From that ultimate

determination, I respectfully dissent.

GREENBERG, Judge, dissenting:

I.

I respectfully dissent entirely. "This petition raises important questions about how the

Government carries out its obligations to our veterans." Mathis v. Shulkin, 137 S. Ct. 1994, 1994

(2017) (Sotomayor, J., dissenting). "[H]ow is it that an administrative agency may manufacture

for itself or win from the courts a regime that . . . does nothing to assist, and much to impair, the

interests of those the law says the agency is supposed to serve?" Id. at 1994 (Gorsuch, J.,

dissenting). The issue of systemic VA delay "is of much significance to many today and,

respectfully, it is worthy of this Court's attention." Id.

Systemic delay at VA is admittedly a complex issue with multiple contributing factors. But

"courts may not abdicate their role and deny any effective remedy" to victims of administrative

delay simply "because the problem is difficult." Blankenship v. Sec'y of HEW, 587 F.2d 329, 336

(6th Cir. 1978) (Merritt, J.). Aggregate action is an appropriate remedy for claimants "seeking

relief from delays in the administrative review process." Barnett v. Bowen, 794 F.2d 17, 22 (2d

Cir. 1986) (Feinberg, J.). This Court has been commanded by Congress to "compel action of the

Secretary unlawfully withheld or unreasonably delayed." 38 U.S.C. § 7261(a)(2).

Our jurisdiction to hear aggregate action and provide the appropriate remedy should have

been part of our jurisdiction since Congress established an Article I court for veterans in 1988. See

28 U.S.C. § 1651; 38 U.S.C. §§ 7261(a)(2), 7264(a).

Legal precepts tend to expand, inexorably and sometimes imperceptibly. This is so, at

least in part, because a broadly-formulated legal principle is by its very nature

applicable to a wide range of situations. In any particular case, advocacy impels each

party to claim the benefit of a potentially applicable doctrine, and in the absence of

countervailing principles, consistency leads courts to decide in accordance with the

suggested rule. But as a doctrine travels beyond the circumstances which generated it,

the reasons which gave rise to that doctrine grow more attenuated, and the court is

progressively more likely to encounter off-setting policies not present in the original

application.

N.J. Ed. Ass'n v. Burke, 579 F.2d 764, 765 (3d Cir. 1978) (Adams, J.).

33

Our Court wrongly applied the law. See Lefkowitz v. Derwinski, 1 Vet.App. 439, 440

(1991); Monk v. McDonald, No. 15-1280, 2015 WL 3407451, at *1 (U.S. Vet. App. May 27, 2015)

(order), rev'd and remanded sub nom. Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) (Reyna,

J.). "In cases involving benefits owed to veterans, Congress has created a scheme conferring

exclusive jurisdiction over claims affecting veterans' benefits to some federal courts, while

denying all other federal courts any jurisdiction over such claims." Veterans for Common Sense v.

Shinseki, 678 F.3d 1013, 1020 (9th Cir. 2012) (en banc) (Bybee, J.). Limitations on our jurisdiction

have been merely self-imposed. See, e.g., Mokal v. Derwinski, 1 Vet.App. 12 (1990).

II.

We have been given direction, not discretion, to "use class actions to promote efficiency,

consistency, and fairness in . . . decisions" through our authority to issue writs. Monk, 855 F.3d at

1321. "[T]he issue [of unreasonable delay in VA's first-come-first-served queue] seems best

addressed in the class-action context, where the Court could consider class-wide relief." Ebanks v.

Shulkin, 877 F.3d 1037, 1040 (Fed. Cir. 2017). The Court ignores this command, using

unnecessary specificity to "slam the courthouse door against" the petitioner. Ass'n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 159, 178 (1970) (Brennan, J., concurring in result

and dissenting).

III.

"It is a general rule in equity, that all persons materially interested, either as plaintiffs or

defendants in the subject matter of the bill ought to be made parties to the suit, however numerous

they may be." West v. Randall, 29 F. Cas. 718, 721 (No. 17,424) (C.C.D. R.I. 1820). Class action

"was an invention of equity . . . mothered by the practical necessity of providing a procedural

device so that mere numbers would not disable large groups of individuals, united in interest, from

enforcing their equitable rights nor grant them immunity from their equitable wrongs."

Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir. 1948) (Sanborn, J.). "The

comprehensiveness of . . . equitable jurisdiction is not denied or limited in the absence of a clear

and valid legislative command. Unless a statute in so many words, or by a necessary and

inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction

is to be recognized and applied." Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).

(Murphy, J.).

IV.

Rule 23 is a tempting minefield for the unwary. Its use as a guide creates another self-

imposed barrier by the Court and simply demonstrates how quickly the Court can adjust its timidity

and refuse to get on with it. Veterans are alleging a common delay in the adjudication of their

claims at the Board level, yet today we debate whether there is glue connecting the claimants to

each other and the system's fractured parts. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 377

(Ginsburg, J., dissenting) ("The dissimilarities approach leads the Court to train its attention on

what distinguishes individual class members, rather than on what unites them." (internal quotation

marks omitted)). The system is broken. We, the Court, must be the glue.

V.

Rather than adopting a rule to keep classes out, I believe we should have followed the

excellent example of the Court of Federal Claims:

34

[t]he better road to follow, until we are clearer as to the shape of the class-suit needs

in this court and the functioning of various class-suit devices, is to proceed on a case-

by-case basis, gaining and evaluating experience as we study and decide the class-suit

issues presented by individual, concrete cases coming up for resolution. If we

ultimately adopt a general rule, it will be in the light of this ad hoc experience.

Quinault Allottee Ass'n & Individual Allotteess v. United States., 453 F.2d 1272, 1276 (Fed. Cl.

1972).

Once a common problem has been presented to the Court, our inquiry regarding whether

to certify a class should be limited to numerosity and the competence of counsel to properly

represent the class. See, e.g., Rosinski v. Shulkin, 29 Vet.App. 183, 194 (2018). (Greenberg, J.,

dissenting). Here, the Court has been petitioned to address unconstitutional systemic delay at the

Board level of VA, and numerosity and counsel's competence are not in dispute.

The Court relies on Wal-Mart to justify its denial of class certification. Wal-Mart dealt with

a class certification request for 1.5 million current and former Wal-Mart employees alleging sex-

based discrimination in pay and promotion decisions, in violation of Title VII of the Civil Rights

Act of 1964. 564 U.S. at 342. The validity of petitioners' claims depended on unlawful

discriminatory intent by Wal-Mart and its management. See 42 U.S.C. § 2000e-1 et seq. Because

the petitioners worked in thousands of stores under thousands of managers, the Supreme Court

found that the petitioners failed to show "some glue holding the alleged reasons" for pay and

promotion decisions together, making it "impossible to say that examination of all the class

members' claims for relief will produce a common answer to the crucial question why was I

disfavored." 564 U.S. at 352 (emphasis in original). In essence, it was impossible to discern

whether all class members suffered an actual injury under Title VII. The constitutional violations

alleged in this case are wholly distinguishable. The alleged injury suffered by the class here is

unconstitutional delay in adjudication. The class petition sought remedy for all veterans whose

appeals had not been decided within 1 year of the date on which a Notice of Disagreement had

been submitted. Unlike the Wal-Mart petitioners, the petitioners here make it eminently easy for

the Court to determine whether any veteran has experienced the alleged injury of unconstitutional

delay. Wal-Mart cannot and should not have been read to keep this class of veterans out of the

Court.

VI.

Due process will never be afforded while the masses of veterans idle indefinitely in

gridlock. "[A]t some point delay must ripen into deprivation, because otherwise a suit alleging

deprivation would forever be premature." Shroeder v. City of Chicago, 927 F.2d 957, 960 (7th Cir.

1991) (Posner, J.); see also Wright v. Califano, 587 F.2d 345, 349 (7th Cir. 1978) (Wood, Jr., J.).

The procedural framework for adjudicating claims must be sufficient for the "large majority" of a

group of claims to be constitutionally adequate for all. Walters v. Nat'l Ass'n of Radiation

Survivors, 473 U.S. 305, 331 (1985) (Rehnquist, J.). The Secretary deflects much of the blame

towards Congress for overburdening him with the duty to assist veterans. See Secretary's Response

to October 2017 Court Order at 18-24. Congress has responded by creating various "lanes" for

appeals. https://benefits.va.gov/benefits/appeals.asp (last visited Apr. 24, 2018). Yet, a wider road

for veterans is only helpful if VA's sluggish bureaucracy is no longer at the wheel. "[M]any

unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of

35

mmediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a

long one." Hayburn's Case, 2 U.S. (2 Dall.) at 410, n. (1792) (Jay, C.J.). This favored class of

claimants should be certified; no further analysis is necessary.

VII.

I "willingly acknowledge that, in theory, the political branches of our government are better

positioned than are the courts to design the procedures necessary to save veterans' lives and to

fulfill our country's obligation to care for those who have protected us. But that is only so if those

governmental institutions are willing to do their job." Veterans for Common Sense v. Shinseki¸ 644

F.3d 845, 850-51 (9th Cir. 2011) (Reinhardt, J) (emphasis added), opinion vacated on reh'g en

banc, 678 F.3d 1013, (9th Cir. 2012). On average, it takes VA 1,094 days just to certify and docket

an appeal, and more than 5 ½ years to adjudicate a claim after an NOD is filed. See Martin v.

O'Rourke, 891 F.3d 1338, 1350 (Fed. Cir. 2018) (Moore, J., concurring). This is unconscionable.

Not every veteran can afford to hire an attorney to file a petition for a writ of mandamus on his or

her behalf. See id. Here, the only way to remedy systemic delay is to certify the class of affected

veterans and to issue a writ granting the petitioner's requested relief because ultimately the delay

at VA has amounted to the Secretary's refusal to act on the petitioners' claims. United States ex rel.

Miller v. Raum, 135 U.S. 200, 204 (1890) (Bradley, J.) ("[W]hen such officers refuse to act at all

in a case in which the law requires them to do so . . . a mandamus lies to compel them to act or to

perform such ministerial duty."). "Given Congress's understandable decision to place a thumb on

the scale in the veteran's favor," Shinseki v. Sanders, 556 U.S. 396, 416 (2009) (Souter, J,

dissenting), there should be no question that the interest of these worthy claimants outweighs that

of the Government, see Mathews v. Eldridge, 424 U.S. 319 (1976) (Powell, J.), and this deprivation

affecting hundreds of thousands of veterans violates of due process. U.S. CONST. amend. V.

VIII.

In Brown v. Plata, the Supreme Court reviewed a three-judge panel's order that the State

of California reduce its prison population from almost 200% of design capacity to 137.5%. 563

U.S. 493 (2011) (Kennedy, J.). The panel had consolidated two separate class actions challenging

prisoners' inability to access adequate medical care; Coleman v. Brown involved a class of

prisoners with serious mental disorders and Plata involved a class of prisoners with serious

medical conditions. Id. at 503-04, 506-07. The district court in Coleman appointed a special master

to oversee the development and implementation of a remedial plan; 12 years after his appointment,

the special master reported that the state of mental health care was deteriorating because of prison

population increases. Id. at 506-07. After California conceded that its health care failing violated

its prisoners' Eighth Amendment rights, the district court in Plata ordered a remedial injunction,

and when California failed to comply, appointed a receiver to oversee implementation; the receiver

also reported that overcrowding prevented improvement in prison health care. Id. at 507. A three-

judge panel was convened to oversee the consolidated cases and the panel ordered California to

formulate a plan to reduce its prison population, submit its plan to the panel for approval, and

implement the approved plan. Id. at 509-10. The Court declared that Federal courts "must not

shrink from their obligation to 'enforce the constitutional rights of all persons.'" Id. at 511 (quoting

Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)). It upheld the court-mandated prison

36

population reduction as "necessary to remedy the violation of prisoners' constitutional rights." Id.

at 502.

The point here is that where broad institutional problems impede constitutional rights,

courts have stepped in to command broad remedies. See, e.g., Id. at 502; Blankenship, 587 F.2d at

336 (ordering the Secretary of HEW to promulgate rules and regulations); Henderson v. Graddick,

641 F.Supp. 1192 (M.D. Ala. 1986) (per curiam) (behavior by the State's attorney general affecting

gubernatorial primary elections justified the court ordering a new election). Here, the Court had

an opportunity to address the entirely indefensible program of systemic and systematic VA delay.

The Court's decision to limit class certification to those attacking a "specific practice or policy"

means that the Court may treat individual examples of delay without even trying to remedy the

fundamental problem–programmatic delay.

Therefore, I would appoint recall judges from this Court as special masters to ensure

compliance with the Court's holding, beginning with oversight of Congress's recently enacted

Veterans Appeals Improvement and Modernization Act of 2017, 115 Pub. L. No. 55, 131 Stat.

1105 (Aug. 23, 2017). Appointing recall judges would allow the Court to minimize additional

expenditures. See 38 U.S.C. § 7296(c). I would provide notice to all affected veterans through

publication on VA.gov and require immediate mailings to veterans to their addresses listed with

VA. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Jackson, J) (notice

is constitutionally sufficient if it is "reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present their

objections"). I would then allow VA and representatives of the class of veterans to attempt to reach

a settlement on the maximum time VA has to adjudicate the claims of the class members; the Court

would only provide a time limit in the event the parties could not come to an agreement. While I

believe that this would be the least intrusive means of remedying the constitutional violation, see,

e.g., 18 U.S.C. § 3626, I would not rule out the possibility of creating a receivership if VA fails to

comply with these necessary time constraints. See Plata, 563 U.S. at 516 ("When a Court attempts

to remedy an entrenched constitutional violation through reform of a complex institution . . . it

may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing

remedial efforts.").

IX.

I agree with Justice Brennan, that "[d]issent for its own sake has no value . . . . However,

where significant and deeply held disagreement exists, members of the Court have a responsibility

to articulate it. . . . Unanimity is not in and of itself a judicial virtue. . . . Judges have no power to

declare law. Courts derive legal principles and have a duty to explain why and how a given rule

has come to be. . . . [Judges] are forced by a dissent to reconsider the fundamental questions and

rethink the result . . . . In my judgment. . . the unique interpretive role of [our Court] with respect

to the Constitution [and our authority] demands some flexibility with respect to the call of stare

decisis. . . . [We should not be] captive to the anachronistic view of long-gone generations. . . . The

right to dissent is one of the great and cherished freedoms by reasons of the excellent accident of

our American births." William J. Brennan, In Defense of Dissents, 37 HASTINGS L.J. 427, 427-35

(1985) (emphasis in original).

For all these reasons, I respectfully dissent.

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