The US Court of Appeals for Veterans Claims will allow its first class-action lawsuit against the Department of Veterans Affairs to move forward.
The case, Gosey v. Wilkie, is aimed at shortening the appeals processing delay between regional offices and the Board of Veterans Appeals. For years, Regional Offices were able to artificially lower the appeals backlog by shelving appeals in the certification process before they were docketed at the Board of Veterans Appeals.
The Court ruled to allow veterans with greater than 18-month delays to be included in the class saying such delays “deprive (veterans) of their constitutional right to due process.”
“We are not content to wait for the (VA) Secretary to remedy these unreasonable delays on his own,” the judges wrote. “The Secretary has had many years to act and initiate pre-certification review of class members’ cases, and he has failed to do so … Simply put: the time has come for judicial intervention.”
In 2017, it took VA, on average, 773 days to simply certify a Substantive Appeal to the Board and an additional 321 days after the certification to transfer the record. So, in a post-paper record era, it still took almost 1 year to transfer the record to the Board.
“(The court’s) order certifying a class action for the first time in its 30-year history is a landmark moment, and will help ensure that our veterans and their families have more access to the justice they deserve,” said Bart Stichman, executive director of the National Veterans Legal Services Program, which has helped oversee the case. “It has been a long time coming.”
The class of veterans is represented by NVLSP and Covington & Burling LLP.
For decades, veterans have clamored for the right to join each other in a class-action when pursuing due process when fighting for benefits, but courts have long blocked the right to these kinds of litigations.
If I had a nickel for every time a veteran asked me about forming a class-action to sue VA I’d no longer need to work. Not ever. (Hint: It comes up a lot.)
The brass tacks of class-action lawsuits are as follows.
The vast majority of lawyers will never get involved in class-action lawsuits because the form of litigation is highly specialized. And, such a lawsuit requires incredible amounts of manpower and financing.
Suffice to say few solo attorneys like myself would ever get involved in a class-action lawsuit.
That aside, this is great news for veterans and should help thousands of veterans get justice without each being required to litigate the same facts over, and over.
The ruling now requires VA to act. The agency is required to conduct a precertification review of all class members within 120 days. By the end of the summer, the agency should provide an update to the court.
Rest assured the next three months will be very interesting within the agency. I would guess the agency may try to moot out as many class members’ claims as possible perhaps by granting the benefits sought or performing some other mental acrobatics.