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Monk v. Shulkin

United States Court of Appeals, Federal Circuit

April 26, 2017

CONLEY F. MONK, JR., Claimant-Appellant

          Appeals from the United States Court of Appeals for Veterans Claims in No. 15-1280, Judge Lawrence B. Hagel.

          John Giammatteo, Liang Shu, Jerome N. Frank Legal Services Organization, New Haven, CT, argued for claimant-appellant. Also represented by MICHAEL Joel Wishnie, Mario Gazzola, Jason Parkin, Jessica Purcell.

          Agatha Koprowski, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MlZER, ROBERT E. Kirschman, Jr., Martin F. Hockey; Brian D. Griffin, Amanda Blackmon, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Jonathan Freiman, Wiggin and Dana LLP, New Haven, CT, for amici curiae William Gunn, Mary Lou Keener. Also represented by Lora JOHNS.

          Barton F. Stichman, National Veterans Legal Services Program, Washington, DC, for amici curiae The National Veterans Legal Services Program, Veterans Law Institute, The American Legion, The Military Order of the Purple Heart, Iraq and Afghanistan Veterans of America, Vietnam Veterans of America, Hispanic American Veterans of Connecticut.

          JASON L. LiCHTMAN, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, for amici curiae Administrative Law Professors, Complex Litigation Law Professors. Also represented by JONATHAN D. Selbin.

          Before NEWMAN, Dyk, and Reyna, Circuit Judges.

          Reyna, Circuit Judge.

         This appeal concerns whether the United States Court of Appeals for Veterans Claims has authority to certify a class for class action or for similar aggregate resolution procedures. Conley F. Monk, Jr., petitioned the Veterans Court to certify a class action and to otherwise aggregate for adjudication the claims of thousands of veterans whose claims were similarly situated to his own. The Veterans Court denied the request on grounds that it lacks authority to certify classes of claims, or to adjudicate disability claims on an aggregate basis. We hold that the Veterans Court has the authority to certify a class for a class action and to maintain similar aggregate resolution procedures. We reverse the judgment of the Veterans Court and remand for further proceedings consistent with this opinion.


         Mr. Monk served in the Marine Corps during the Vietnam War. In February 2012, Mr. Monk filed a claim for disability benefits with the Department of Veterans Affairs ("VA") Regional Office in Hartford, Connecticut. His claim stems from what he alleges are service-connected post-traumatic stress disorder, diabetes, hypertension, and strokes. In early 2013, the VA notified Mr. Monk that his claim had been denied because his Marine Corps discharge was "other than honorable." J.A. 138.

         Mr. Monk challenged the VA decision by filing with the VA a Notice of Disagreement ("NOD") and requesting a hearing before a decision review officer.[1] Separately, Mr. Monk applied to the Board of Correction of Naval Records ("BCNR") to upgrade his discharge status.

         In February 2014, the regional office held the requested hearing. In March 2015, the VA informed Mr. Monk that it could not process his appeal until it received records from the BCNR regarding his discharge status.

         On April 6, 2015, Mr. Monk filed a petition for a writ of mandamus with the United States Court of Appeals for Veterans Claims ("Veterans Court"). He requested the Veterans Court to order the Secretary of Veterans Affairs ("Secretary") to promptly adjudicate both his disability benefits application and the applications of similarly situated veterans. Mr. Monk also requested that the Veterans Court certify a class under a class action or similar aggregate resolution procedure. He proposed that a class be formed of all veterans who had applied for VA benefits, had timely filed an NOD, had not received a decision within twelve months, and had demonstrated medical or financial hardship as defined by 38 U.S.C. §§ 7107(a)(2)(B)-(C). Mr. Monk proposed that members of the class include veterans in all stages of the VA appeals process that otherwise met these requirements, from those awaiting a Statement of the Case to those awaiting Board adjudication. J.A. 18, ¶ 43.

         Mr. Monk further alleged that members of the proposed class shared questions of law and fact, including whether the VAs delay in rendering decisions on disability benefits claims violated the veterans' due process rights. On April 9, 2015, another veteran, Harold William Van Allen, filed a motion to join Mr. Monk's petition as a class member.

         On May 8, 2015, the Veterans Court issued a non-dispositive order both denying Mr. Monk's request for class certification and ordering the Secretary to respond to the part of Mr. Monk's petition regarding his appeal of the VAs denial of his personal claim for disability benefits.

         On May 27, 2015, in order to permit Mr. Monk to immediately appeal the class certification denial, the Veterans Court replaced the non-dispositive order with a dispositive order denying class certification and a non-dispositive order requiring the Secretary to respond to Mr. Monk's individual mandamus petition. In the same order, the Veterans Court denied Mr. Van Allen's motion to join Mr. Monk's proposed class.

          In May 2015, the BCNR granted Mr. Monk's application for an upgraded discharge status which resulted in an honorable discharge status for Mr. Monk. In July 2015, the Veterans Court issued an order denying Mr. Monk's individual petition for mandamus relief. It found that the VA's delay in adjudicating Mr. Monk's disability claim resulted, at least in part, from the VA's need for certain BCNR records.

         The Veterans Court also rejected Mr. Monk's request for a class action or other aggregate relief on grounds that it lacks authority to maintain class actions. The Veterans Court stated that "Mr. Monk fails to appreciate the [Veterans] Court's long-standing declaration that it does not have the authority to entertain class actions." J.A. 3. The Veterans Court concluded that "[i]n the absence of such authority, no other arguments matter." J.A. 4.

         On May 27, 2015, and July 10, 2015, Mr. Monk filed two timely appeals before this court, one challenging the Veterans Court's decision to deny his individual disability claim and the other to appeal the Veterans Court decision denying his request for a class action. Though separate appeals, the class certification appeal (No. 15-7092) was consolidated with the individual petition appeal (No. 15-7106).

         After Mr. Monk appealed to this court, the Secretary determined that Mr. Monk was eligible for full disability benefits for his service-connected post-traumatic stress disorder and diabetes. On or after November 19, 2015, Mr. Monk filed before the VA administration a new NOD arguing that the Secretary erred in determining the effective date for his individual disability ...

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