U.S. Court of Appeals for Veterans Claims Certifies First Class Action in NVLSP Case Challenging Delays in VA Decision-Making

WASHINGTON – On June 13, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) certified its first class action. The case, styled Godsey v. Wilkie, was a petition for extraordinary relief brought by Covington & Burling LLP and the National Veterans Legal Services Program (NVLSP).

The petition was filed on behalf of veterans James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, Pamela Whitfield. It sought relief for all similarly situated VA benefits claimants who have filed an appeal to VA’s highest tribunal, the Board of Veterans’ Appeals (Board), and since have suffered extended delays waiting for VA to begin moving their appeals forward in a process called “certification.”

The CAVC partially granted the petition in the same order that it certified the class action, concluding that 18-month or longer VA delays to begin that process are “per se unreasonable.” “Such delays are particularly intolerable,” the Court stated, “because they consist of nothing but waiting in line: … no action whatsoever on the part of VA” while the veterans have continued to wait.

“CAVC’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 NVLSP Executive Director Bart Stichman. “It’s been a long time coming. At last, this precedential order opens the door for veterans to receive efficient, consistent and fair adjudications just as Congress intended.”

Background

On November 15, 2017, James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, and Pamela Whitfield, represented by Covington and NVLSP, filed a petition for extraordinary relief on behalf of themselves and a putative class of similarly situated veterans.

The petitioners stated that they had each filed an appeal to the Board and that, as of the date of the petition, had suffered a multi-year delay waiting for the VA to certify their appeals.

In their filing, the petitioners asserted that the Secretary’s failure to timely certify their appeals to the Board violated their right to procedural due process under the Fifth Amendment, constituted agency action unreasonably delayed and violated a statutory right to have their appeals “considered and decided [by the Board] in regular order according to its place upon the [Board’s] docket.” Moreover, the petitioners stated that the “extreme” certification delays were likely encountered by hundreds, if not thousands, of claimants nationwide. “Certification” delays of that magnitude, they asserted, are unreasonable in all cases.

In a 2-1 decision, a three-judge panel of the CAVC noted a split in the court regarding how to evaluate proposed classes. The panel majority narrowed the proposed Godseyclass to veterans for whom VA has not begunthe process of certifying appeals, filed at least 18 months ago, to the Board.

It concluded that, whatever the case might be for the broader class that the petitioners proposed, this narrower class meets all prevailing criteria for class actions. In its discussion of class certification, it stated: “[A] class action decision is a more efficient and effective vehicle for resolving this case than a precedential decision focused on an individual veteran’s case.”

Additionally, when weighing the merits of the class petition, the court did not mince words. “[W]e are not content to wait for the Secretary to remedy these unreasonable delays on his own. The Secretary has had many years to act and initiate pre-certification review of class members’ cases, and he has failed to do so. Ms. Whitfield, for example, was forced to wait over six years for the Secretary to act on her Substantive Appeal based on no fault of her own. Simply put: the time has come for judicial intervention.”

The court granted the petition’s sought relief on the basis of unreasonable delay, determining that it did not need to consider the petitioners’ other arguments.

Under the court’s order, VA must review and move forward all class members’ appeals by October 11, 2019. It also must file a status update with the court by August 12, 2019. The court’s order appoints Covington and NVLSP as class counsel.

About NVLSP

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation’s definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.