Petition for Class Action/Aggregate Relief Denied in Monk v. McDonald by CAVC

In previous blogs, I had commented on Yale Veterans Clinic’s Petition for Mandamus and Request for Aggregate Relief/Class Action Status in Monk v. McDonald.  Our prior blog can be accessed at Monk v. McDonald.  The petition had picked up significant media coverage because it concerned the excessive delay in adjudicating claims subject to appeal before the Department of Veterans Affairs (VA).  I was skeptical about the CAVC’s jurisdiction (and from a functional standpoint the CAVC’s administrative ability) to review issues pertaining to delay as an aggregate under the All Writs Act, 28 U.S.C. § 1651.

On May 8, 2015, the CAVC issued an Order mandating a response from the VA in relation to Mr. Monk’s specific claim, however, denying Mr. Monk’s request for recertification as a class action/review in the aggregate.  A copy of the CAVC’s order can be found at Monk v. McDonald (Order, May 8, 2015).  * On May 27, 2015, the CAVC withdraw the May 8 ,2015 and issued two separate orders, one denying the “certification” of class action/aggregate and a separate order mandating response from the VA in relation to Mr. Monk’s specific claim.  As CAVC noted, this was done to resolve a procedural aspect of Mr. Monk’s ability to appeal to the Fed. Cir.*

On May 19, 2015, the Yale Veterans Clinic filed a notice of appeal to the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) based upon the CAVC’s denial of certification in the aggregate/class action.  This appeal in its own right presents a interesting jurisdiction/standing question because the individual claimant’s Petition was not denied by the CAVC and the Federal Rules for Civil Procedure (specifically Rule 23 involving certification as class action) have never been applied in the context of Title 38.

Unfortunately, and my humble perspective, only legislative or executive action can remedy the issue of systemic excessive delay under Title 38 (veterans benefits).  The issue is likely beyond the scope of the jurisdiction of the judicial bodies authorized to review claims pertaining to veterans benefits under the current statutory scheme. Although not directly applicable because it dealt with a criminal proceeding under the UCMJ, the situation in Monk v. McDonald reminded me of Judge Robert Wiss’s quote in United States v. Joseph, 37 M.J. 392 (C.M.A. 1993):  “. . . it is not the proper function of the court to reshape the hole so that it will accept the peg and, in the process, distort the hole’s character. Rather, it is the proper limit of the court’s function to consider whether the hole — politically determined — already is large enough so that the peg fits within it.”


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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

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