[00:00:00] Speaker ?:
Okay.

[00:00:05] Speaker ?:
Okay.

[00:00:41] Speaker 05:
Okay.

[00:00:57] Speaker 05:
The next argue case is number 157092, Monk against McDonald, Ms.

[00:01:03] Speaker 03:
Hsu.

[00:01:05] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:01:07] Speaker 03:
I am Julia Hsu, appearing on behalf of Appellant Conley Monk, Jr.

[00:01:12] Speaker 03:
who is with us in court today.

[00:01:13] Speaker 03:
Mr. Longford, would you please rise?

[00:01:17] Speaker 05:
Thank you.

[00:01:18] Speaker 05:
Welcome to the court.

[00:01:20] Speaker 03:
The question today is whether the Court of Appeals for Veterans Claims, like other courts, may aggregate claims through their All Rights Act authority or their inherent powers.

[00:01:32] Speaker 02:
Could I back you up just a moment?

[00:01:34] Speaker 02:
The briefs talk about systemic delays in the processing of disability claims.

[00:01:40] Speaker 02:
But when I go back to the complaint, it seems to me that the complaint is addressing something much narrower.

[00:01:48] Speaker 02:
It's addressing a specific period of delay from the time that a notice of disagreement is filed to the filing of the statement of the case.

[00:01:57] Speaker 02:
Is my understanding of the complaint correct?

[00:02:00] Speaker 03:
Your Honor, yes.

[00:02:01] Speaker 03:
In that sense, the petition for mandamus had a suggestion for a proposed class based on a particular time of delay.

[00:02:08] Speaker 03:
and particular medical and financial circumstances.

[00:02:12] Speaker 03:
However, because the CADC's ruling was a broad rule of law that it could not aggregate under any appropriate circumstances, or any circumstances at all, the briefs have focused instead on the authority of the court to be able to do so in appropriate circumstances.

[00:02:27] Speaker 02:
But I think that the nature of the claim is relevant to the question of certification.

[00:02:32] Speaker 02:
Because, for example, the government already views that when you get before the board,

[00:02:37] Speaker 02:
that there's a difference from one claim to another because there may be new evidence put in.

[00:02:43] Speaker 02:
But in fact, you're confining yourself to the specific period of time between the notice of disagreement and the filing of the statement of the case, correct?

[00:02:52] Speaker 03:
In the petition, yes, Your Honor.

[00:02:53] Speaker 03:
However, because the CAVC made no factual determinations about the class and did not consider class certification, it summarily denied it on the basis of its precedent on that broad rule of law.

[00:03:05] Speaker 03:
We request that that rule of law be reversed and the case be remanded to the CAVC for it to consider whether that is the appropriate class in these circumstances.

[00:03:15] Speaker 02:
Because the CAVC's rule of law prohibits for it... You asked for what you asked for, so we have to consider it on the basis of what you asked for, right?

[00:03:24] Speaker 03:
Your Honor, as to the particular rule of... The question on appeal is the rule of law that it has been... Well, they're making other arguments.

[00:03:31] Speaker 02:
They're saying there's no point in sending it back because there's no...

[00:03:34] Speaker 02:
appropriate class to be certified.

[00:03:36] Speaker 02:
Now whether or not we're going to consider that is an open question.

[00:03:40] Speaker 02:
I'm just saying we have to live with the complaint that you filed for present purposes.

[00:03:47] Speaker 02:
You certainly agree, don't you, that the mootness issue has to be addressed, right?

[00:03:52] Speaker 03:
Yes, Your Honor.

[00:03:52] Speaker 03:
However, we believe that the case is not moot for two reasons.

[00:03:56] Speaker 03:
The first is that the name plaintiff can continue to litigate the denial of class certification even

[00:04:01] Speaker 03:
after the individual claim has been mooted as per the Garrity Line.

[00:04:05] Speaker 03:
And the second is that Mr. Monk separately qualifies for three exceptions to the mootness doctrine, capable of repetition yet evading review, inherently transitory, and the pick-off exception.

[00:04:16] Speaker 03:
Under all of these four reasons.

[00:04:19] Speaker 02:
I think the pick-off exception maybe has gone down in the line of Supreme Court decision, genesis or whatever the name of it is.

[00:04:31] Speaker 02:
What is his status?

[00:04:33] Speaker 02:
What's happening with the processing of his claim?

[00:04:37] Speaker 02:
He's claiming that the date for which he's getting benefits is the wrong date.

[00:04:44] Speaker 02:
It should be February instead of July.

[00:04:46] Speaker 02:
Is that correct?

[00:04:48] Speaker 03:
Yes, Your Honor.

[00:04:49] Speaker 02:
And what's happening with that now?

[00:04:50] Speaker 03:
The notice of disagreement is pending before the VA, so that is currently where Mr. Mung stands on his individual claim.

[00:04:57] Speaker 03:
As for Genesis, if I might briefly address that, Your Honor, Genesis pertains to the specific statutory regime of the Fair Labor Standards Act, which requires a motion for conditional certification and decision there before full class certification.

[00:05:11] Speaker 03:
Because the individual claim was mooted before conditional certification, there was no denial of class certification, as is the case here, and the Supreme Court in Campbell, Ewald versus Gomez,

[00:05:21] Speaker 03:
recently declined to extend Genesis beyond the falser regime.

[00:05:25] Speaker 03:
As for Mr. Monk's personal and individual claim, the rationale behind Garrity as to the continuation of litigation of class certifications still applies in this circumstance.

[00:05:36] Speaker 03:
Mr. Monk still retains a personal stake in the litigation due to his effective date at OD, and his commitment to the case is indicated through his presence in court today.

[00:05:45] Speaker 00:
Furthermore, the... The question he raised, that in...

[00:05:50] Speaker 00:
rise to this appeal, that's been decided, correct?

[00:05:53] Speaker 03:
I'm sorry.

[00:05:54] Speaker 00:
The question in his complaint that he raises, that's been decided.

[00:05:58] Speaker 03:
As to the individual claim, but the class claims were never considered.

[00:06:01] Speaker 00:
You're saying there's a lingering claim, but the question that's a subject of the complaint has already been determined.

[00:06:08] Speaker 03:
As to his individual claim, but as to the class claims, the CAVC never considered the suitability

[00:06:13] Speaker 03:
of Mr. Monk's proposed group because of that broad rule of law.

[00:06:17] Speaker 03:
It concluded that it didn't have the authority to aggregate under any circumstances.

[00:06:21] Speaker 03:
And without that authority, it could not have exercised any discretion to consider whether Mr. Monk's proposed class was appropriate.

[00:06:28] Speaker 02:
Well, that's a fair point.

[00:06:29] Speaker 02:
But that doesn't address the mootness question, which you agree that we have to decide.

[00:06:34] Speaker 02:
It's a jurisdictional question.

[00:06:35] Speaker 03:
Yes, Your Honor.

[00:06:36] Speaker 03:
And that Mr. Monk does qualify for three mootness exceptions

[00:06:42] Speaker 03:
as well as the continuation of litigation of denial of class certification under Garrity.

[00:06:48] Speaker 03:
As to the capable of repetition and evading review, there's a reasonable expectation that the offending behavior Mr. Munk will experience again.

[00:06:56] Speaker 03:
The claim is inherently transitory, does meet both of the requirements as outlined in Gerstein v. Pugh and Olson v. Brown that there is

[00:07:07] Speaker 03:
an uncertainty that the claim would remain live enough for a class certification to be fully litigated, and that there's a constant class of petitioners.

[00:07:14] Speaker 03:
There are thousands of veterans who are mired in similar delays of, on average, four years within the appeals system.

[00:07:21] Speaker 02:
And so... Well, not four years from the NOD to the SSC, right?

[00:07:27] Speaker 02:
Not from the NOD to the SSC, but from the NOD to reaching a BVA decision that could bring them before the... Okay, but we've got to deal with the complaint that you filed, which is just dealing with a specific period at

[00:07:37] Speaker 03:
Yes, Your Honor, but that question could be more fully briefed before the CAVC.

[00:07:42] Speaker 03:
And if it is reversed, that it does have the authority to aggregate, it could.

[00:07:51] Speaker 03:
The complaint, for example, goes from the NOD to the decision.

[00:07:59] Speaker 03:
I apologize.

[00:08:01] Speaker 03:
on paragraph 43 of the complaint, it explains that it is considering the time period from the NOD to the decision.

[00:08:07] Speaker 02:
Which decision?

[00:08:08] Speaker 02:
The decision reflected in the statement of the case?

[00:08:10] Speaker 03:
The decision at the BDA.

[00:08:12] Speaker 03:
And my apologies, Your Honor, for previous confusion.

[00:08:15] Speaker 00:
Can you repeat what you just said?

[00:08:18] Speaker 00:
What's the confusion?

[00:08:21] Speaker 03:
In the complaint, we did consider the outline of the class to be from the time period from the NOD to receiving a decision on

[00:08:30] Speaker 03:
from the BVA as to their appeal.

[00:08:33] Speaker 03:
And so all of these veterans who are within the system are similarly stuck waiting for a decision for the BVA who would also fall within that constant class of petitioners.

[00:08:43] Speaker 03:
And furthermore, other courts frequently aggregate through the All Rights Act and their inherent powers.

[00:08:49] Speaker 03:
And veterans should not be the only class of public benefits recipients to be precluded from aggregating claims for resolution.

[00:08:57] Speaker 00:
Let's assume that

[00:09:00] Speaker 00:
We're favorable to finding that there's authority to entertain class action suits in the veterans process.

[00:09:12] Speaker 00:
Do the circumstances of this case support that?

[00:09:15] Speaker 00:
I mean, I'm troubled with finding in one way, but then finding that the circumstances in this case just don't support us making that decision.

[00:09:30] Speaker 03:
Your Honor, the circumstances of this case do support that decision.

[00:09:33] Speaker 03:
Not only is the case not moot for the four reasons that I outlined previously, but- Forget about mootness right now.

[00:09:40] Speaker 03:
But the ability of the CAVC to consider these claims was not- it did not consider itself to have that ability, so the pleadings and briefings were not sufficient as to that fact.

[00:09:52] Speaker 03:
It should be remitted so that the CAVC can consider.

[00:09:55] Speaker 03:
what the appropriate class would be, what an appropriate standard would be.

[00:09:59] Speaker 03:
It has not previously articulated any standard because it does not believe it has such authority.

[00:10:04] Speaker 03:
So once it does articulate a standard, litigants can brief fully as to the aspects that it does choose to be the test for appropriate aggregation.

[00:10:15] Speaker 03:
And in that sense, the CVC can then determine whether this would be an appropriate class.

[00:10:20] Speaker 03:
We think that on the basis of the petition for mandamus that there is sufficient

[00:10:24] Speaker 03:
reasons to certify a class in this instance, but that would be a question for the CABC on remand once it has articulated a standard that it can then effectively plead.

[00:10:34] Speaker 03:
And furthermore, it could conduct pre-certification discovery, appoint special masters, do other things to consider whether the proposed class and the requested relief would be appropriate, but that would be a question to be reached after the rule of law has been reversed and it can then articulate an appropriate standard.

[00:10:52] Speaker 05:
You've divided your time with your colleague, or is that for the argument in chief?

[00:10:59] Speaker 05:
That's divided.

[00:11:00] Speaker 03:
I'm reserving the remaining time for rebuttal, Your Honor.

[00:11:05] Speaker 02:
Just looking at your complaint, JH-22, I think your first statement of the release that you sought was correct, and your correction is not correct.

[00:11:13] Speaker 02:
Because it talks about the wayward, that is, the regional offices' extensive delay in failing to render decisions.

[00:11:21] Speaker 02:
That's not a board.

[00:11:22] Speaker 02:
That's not addressed to the board's delay.

[00:11:24] Speaker 02:
It's addressed to the regional office delay in filing the statement of the case.

[00:11:30] Speaker 03:
Yes, Your Honor.

[00:11:31] Speaker 03:
In paragraph 43, when we define the proposed group, we state on J page 18.

[00:11:38] Speaker 00:
J what?

[00:11:41] Speaker 03:
J page 18.

[00:11:42] Speaker 03:
J 18.

[00:11:44] Speaker 03:
In paragraph 43, that the proposed aggregate group includes

[00:11:49] Speaker 03:
all veterans who applied for VA disability benefits and have timely filed an NOD upon denial of their initial application and have not received a decision within 12 months, whether the veteran elected a DRO hearing or proceeded directly to the BVA appeal.

[00:12:06] Speaker 03:
So we are considering the timeline from the notice of disagreement through to a final decision by the BVA.

[00:12:13] Speaker 03:
I recognize that my time is up, but I think Your Honors have any further questions?

[00:12:22] Speaker 05:
Okay, Ms.

[00:12:30] Speaker 05:
Kapowski.

[00:12:39] Speaker 04:
Good morning, Your Honors.

[00:12:40] Speaker 04:
May it please the court, Agatha Kapowski for the government.

[00:12:43] Speaker 04:
As Mr. Munk's counsel has just conceded, Mr. Munk's individual claim is moot.

[00:12:48] Speaker 04:
And so the first question for the court to decide is whether or not one of the very narrow sections... Well, I don't think they conceded that.

[00:12:54] Speaker 02:
They said that he meets the capable repetition yet of a review standard because he has another claim which could present the same question.

[00:13:05] Speaker 02:
Well, I believe... He has never contention that this particular claim isn't rude.

[00:13:10] Speaker 02:
It's that he's going to have another claim in relation to this which will be affected by the problem.

[00:13:17] Speaker 04:
I apologize if I was inarticulate, Your Honor.

[00:13:20] Speaker 04:
That question is whether or not an exception to the mootness doctrine applies.

[00:13:25] Speaker 04:
As counsel for Mr. Monk just responded to Judge Raina's question, that his individual claim that he brought his petition on is moot.

[00:13:34] Speaker 04:
And there are a few narrow exceptions to the mootness doctrine.

[00:13:37] Speaker 04:
And one of the exceptions that counsel has raised is Garrity.

[00:13:40] Speaker 04:
In Garrity, the Supreme Court determined that the

[00:13:45] Speaker 04:
named plaintiff in a Rule 23 class under Rule 23 had a procedural right to appeal the denial of class certification.

[00:13:53] Speaker 04:
They did not extend that claim anywhere beyond Rule 23, and indeed in Genesis Healthcare in 2013, they refused to do so.

[00:14:02] Speaker 04:
Council, I believe, has referred the court to Campbell Ewald, claiming that

[00:14:08] Speaker 04:
in that decision, the Supreme Court did not extend Genesis beyond FLSA.

[00:14:13] Speaker 04:
But what Campbell Ewok did was answer an unanswered question in Genesis.

[00:14:17] Speaker 04:
That is, whether or not an unaccepted Rule 68 offer of judgment moots an individual plaintiff's claim.

[00:14:23] Speaker 04:
And the court determined that an unaccepted offer, consistent with its decision in Roper, did not moot the individual plaintiff's claim, which is completely different than what we have here.

[00:14:35] Speaker 02:
You characterized the decision that we're reviewing here in a way that I don't recognize.

[00:14:40] Speaker 02:
It seems to me pretty clear that the Court of Appeals for Veterans Claims said it was without authority to certify a class.

[00:14:48] Speaker 02:
And do you dispute that there is authority to certify a class in appropriate circumstances?

[00:14:54] Speaker 04:
As explained in our brief, the Veterans Court has aggregated claims.

[00:14:59] Speaker 02:
And there is a difference between... You're not answering my question.

[00:15:02] Speaker 02:
I understand.

[00:15:03] Speaker 02:
that the Veterans Court has authority to certify a class in appropriate circumstances.

[00:15:09] Speaker 04:
The Veterans Court may, under appropriate circumstances, adopt some sort of class action mechanism which is currently not before the Court.

[00:15:18] Speaker 04:
What I would dispute with counsel's representation of what the Veterans Court said is Mr. Monk has argued that the Veterans Court... Sorry, we accept the fact that the Veterans Court

[00:15:30] Speaker 02:
declined certified class on the ground that it lacked authority.

[00:15:34] Speaker 02:
That's reversible error.

[00:15:36] Speaker 04:
No, Your Honor, I would disagree.

[00:15:37] Speaker 04:
The Veterans Court stated that if you look at the statements, excuse me, if you look at the... You're not accepting my hypothetical.

[00:15:45] Speaker 02:
My hypothetical is if we read the Veterans Court decision as resting on a lack of authority, that's reversible error.

[00:15:53] Speaker 04:
A lack of authority to aggregate under any circumstances would be a reversible error.

[00:15:58] Speaker 04:
Lack of authority to adopt the class act mechanism that Mr. Monk has proposed would not be a reversible error.

[00:16:04] Speaker 04:
And I don't think it's a fair articulation of the Veterans Court decision to say that the Veterans Court decided it lacked any authority to aggregate cases under any circumstances.

[00:16:14] Speaker 00:
Indeed, in the exact same opinion... Well, this isn't... I'm looking at...

[00:16:18] Speaker 00:
ADD 3, page 3 of the opinion.

[00:16:21] Speaker 00:
It says, this court determined on Bonk and Lefkowitz and Harrison there lacked authority to establish a class act of procedure, and to do so would be unwise and unnecessary.

[00:16:31] Speaker 00:
In absence of such authority, no other arguments matter.

[00:16:34] Speaker 00:
So he dismisses all the arguments and says, we decided we don't have any authority.

[00:16:39] Speaker 00:
Do you agree or disagree with that statement?

[00:16:42] Speaker 04:
I think that the Lefkowitz and Harrison's decisions

[00:16:47] Speaker 00:
as they stated in those decisions, decided that they had no authority to adopt the class action mechanisms as proposed in the... I'm asking you about the decision of Judge Hayward, where he says that there is no authority in the absence of such authority, and that's to establish a class action procedure.

[00:17:07] Speaker 00:
Do you agree or disagree with that statement?

[00:17:09] Speaker 04:
I believe that is consistent with Veterans Court precedent and not a single judge of the Veterans Court probably does not have the authority to establish that whole law.

[00:17:17] Speaker 00:
Does the government agree or disagree with that statement?

[00:17:21] Speaker 04:
That absence of the authority to establish a class action mechanism would be outside Judge Hagel's authority.

[00:17:26] Speaker 00:
Is there authority to establish a class action procedure?

[00:17:32] Speaker 00:
Does a court, does a Veterans Court have authority to establish a class action procedure?

[00:17:37] Speaker 04:
That was left open in the Herowitz and Lefkowitz decisions.

[00:17:40] Speaker 00:
It doesn't have the authority.

[00:17:42] Speaker 04:
It's not open.

[00:17:43] Speaker 05:
It's closed in that decision.

[00:17:46] Speaker 05:
It's very important to know the position of the government with respect to that statement.

[00:17:52] Speaker 04:
I apologize, Your Honor, if it seems like I'm pushing back.

[00:17:56] Speaker 02:
The answer is yes.

[00:17:57] Speaker 02:
The answer is yes.

[00:17:58] Speaker 02:
They do have the authority.

[00:17:59] Speaker 02:
You don't dispute it.

[00:18:00] Speaker 02:
that we don't have the authority... You're trying to read the Veterans Court decision in a way that seems to me to contradict what it said on the face of the decision.

[00:18:09] Speaker 02:
Well, Your Honor... But I don't want to argue with you about it.

[00:18:13] Speaker 00:
Yes.

[00:18:14] Speaker 02:
If they said we lack, we're not doing this because we lack authority, that's wrong, right?

[00:18:22] Speaker 04:
It would be wrong if it's the abstract authority under the AWA.

[00:18:26] Speaker 04:
It would not be wrong to say we lack the authority to

[00:18:29] Speaker 04:
provide the relief that Mr. Monk has requested, which is a very specific... Pardon?

[00:18:35] Speaker 05:
You know what they said.

[00:18:37] Speaker 05:
They made a very specific statement about the authority of that court.

[00:18:41] Speaker 04:
Well, they made a very broad statement about the authority of that court based on Harrison and Lefkowitz, which were decided on the basis of the petitions that were before the en banc courts in those decisions.

[00:18:52] Speaker 04:
I would also note that in the exact same decision, just a few lines down from that statement about the authority,

[00:18:59] Speaker 04:
the Veterans Court considered the motion for Joinder by Mr. Van Allen, a motion that Mr. Monk opposed.

[00:19:06] Speaker 04:
Now, Joinder is clearly a form of aggregation.

[00:19:09] Speaker 04:
If the Veterans Court really believed that it had no authority under any circumstances to ever aggregate claims, it would have no reason to separately address Mr. Van Allen's motion for Joinder.

[00:19:20] Speaker 00:
Well, it seems to me that's what Judge Hagel decided.

[00:19:24] Speaker 00:
And I think it's pretty clear on the face of his decision.

[00:19:28] Speaker 00:
that that's his view and that's what Mr. Monk had was not shut out.

[00:19:34] Speaker 00:
And I don't understand why you waffle so much on this.

[00:19:38] Speaker 00:
We're just asking you whether the Veterans Court has the authority or not to institute or entertain a class action procedure.

[00:19:49] Speaker 04:
if there is a procedure that would fit with the statutory mandates of... Yes, it would.

[00:19:55] Speaker 00:
Yes, it does have the authority.

[00:19:56] Speaker 00:
With that caveat, I don't think it has a blanket authority to... Obviously, they're not going to do it in all cases.

[00:20:02] Speaker 00:
You have to establish the right to a class action procedure.

[00:20:07] Speaker 00:
But you do agree that the court does have the authority to establish such a class action procedure.

[00:20:16] Speaker 04:
In the abstract, yes, it has the authority.

[00:20:20] Speaker 04:
which is why this court needs to determine first off whether or not this case falls into one of the narrow exceptions of mootness.

[00:20:26] Speaker 04:
Mr. Monk has argued that it's capable of repetition and evading review.

[00:20:31] Speaker 04:
But Mr. Monk seems to ignore that these cases are routinely reviewed both by the Veterans Court, delay claims are reviewed, and by this court.

[00:20:39] Speaker 04:
And this court does not often review cases of delay claims for writ of mandamus because they are moot.

[00:20:45] Speaker 04:
This court

[00:20:46] Speaker 04:
often decides them either on the merits or dismisses for lack of jurisdiction because they were decided on facts, which is inconsistent with Mr. Monk's assertion that the somehow evade review of Mr. Monk is simply making that assertion absent any evidence on the record, absent any... But if this were a Rule 23 case, let's assume that

[00:21:10] Speaker 02:
This would satisfy the inherently transitory exception.

[00:21:14] Speaker 04:
Correct.

[00:21:14] Speaker 04:
If this were a Rule 23 case, Mr. Monk would maintain a personal stake in the litigation pursuant to Garrity.

[00:21:19] Speaker 04:
This is not Rule 23.

[00:21:20] Speaker 02:
But why is this different from Rule 23?

[00:21:22] Speaker 04:
Because the Supreme Court was very clear in Garrity that Rule 23 provides a procedural right.

[00:21:26] Speaker 04:
Mr. Monk has not pointed to any procedural or substantive right that he possesses, giving him a personal stake and a concrete interest in this litigation.

[00:21:38] Speaker 04:
The All-Ritz Act, for whatever authority it may give to the Veterans Court, confers no authority and no personal stake to Mr. Mock.

[00:21:47] Speaker 04:
How do we know that?

[00:21:50] Speaker 04:
How do we know that the All-Ritz Act?

[00:21:51] Speaker 02:
If there's a class action certified or refused to be certified under the All-Ritz Act, why does he lack the same kind of personal stake that a Rule 23 plaintiff has?

[00:22:06] Speaker 04:
Well, Rule 23 is subject to the Rules Enabling Act and therefore has the power of statute.

[00:22:13] Speaker 04:
And it confers specific rights to the named plaintiff.

[00:22:17] Speaker 04:
There's just no corollary here.

[00:22:23] Speaker 04:
Do you have a follow-up question, Your Honor?

[00:22:27] Speaker 04:
No.

[00:22:27] Speaker 04:
OK.

[00:22:28] Speaker 00:
Well, I think that the court ignored Mr. Monk's arguments concerning

[00:22:35] Speaker 00:
Rule 23 on the basis that it said, we have no authority anyway, so it doesn't matter.

[00:22:42] Speaker 00:
And it basically says that.

[00:22:44] Speaker 00:
It says that Mr. Monk's arguments to consider him would be otherwise and unnecessary.

[00:22:49] Speaker 04:
Well, we believe a fair reading of the order is that it had no authority to consider the class action mechanism as proposed by Mr. Monk.

[00:22:56] Speaker 00:
So do you disagree now with that?

[00:22:58] Speaker 00:
I mean, today, open court, you agree that the court does have the authority.

[00:23:03] Speaker 00:
to entertain class action suits.

[00:23:05] Speaker 04:
Under appropriate circumstances.

[00:23:08] Speaker 04:
And that is what the court said in Harrison.

[00:23:10] Speaker 04:
And that is what the court said in Lefkowitz.

[00:23:12] Speaker 04:
And Judge Hagel was bound by the decisions in those courts.

[00:23:16] Speaker 04:
And it's important to, as Judge Steig was pointing out to counsel earlier, it is important to understand exactly what Mr. Monk was asking the court to do.

[00:23:24] Speaker 04:
Mr. Monk was asking the court

[00:23:26] Speaker 04:
to set a time limit following an NUD after which, if claims have not been decided, summarily all veterans having waited a certain amount of time with either a summary grant of their benefits or certification to the board.

[00:23:41] Speaker 04:
A summary grant of their benefits would be outside of the statutory authority of the VA.

[00:23:46] Speaker 05:
How do you know?

[00:23:47] Speaker 05:
You're saying that because you might not succeed in the request, therefore there's no authority to entertain it.

[00:23:57] Speaker 04:
I'm not sure I understand your question.

[00:23:58] Speaker 05:
Can you repeat it?

[00:23:59] Speaker 05:
You're saying that what he was requesting in the class action is something to which the government would object or that was overreaching or whatever issue might come up, but you're saying therefore there's no authority?

[00:24:19] Speaker 05:
Or are you discussing the merits?

[00:24:21] Speaker 04:
The Veterans Court recognized that the mechanism as proposed by Mr. Monk in his petition was not something he was able to grant Mr. Monk.

[00:24:31] Speaker 05:
They know the Veterans Court said it had no authority to make that decision.

[00:24:35] Speaker 04:
Which, if you read in context of Harrison and Lefkowitz, is cabin to the mechanisms as proposed in those petitions, just as Judge Hagel's decision is cabin to the mechanism proposed in Mr. Monk's petition.

[00:24:48] Speaker 04:
which would be a broad grant of summary benefits to any veteran who simply waited a long time between his NOD and any determination on this case.

[00:24:59] Speaker 04:
It's a little unclear whether it was simply a statement of the case or something else, but either way, that would be outside the VA's authority.

[00:25:06] Speaker 02:
So why is it, let's put aside the question of basic authority to have a glass, which you can see.

[00:25:12] Speaker 02:
Let's put aside the question of movements, which we've talked about.

[00:25:15] Speaker 02:
Why is it inappropriate to have a class challenging the delay between the NOD and the SSC?

[00:25:23] Speaker 04:
Because this is really a question for the legislature, because under the current statute, there... But in terms of general class action practice, what's the matter with that?

[00:25:33] Speaker 02:
Why is that an inappropriate class?

[00:25:35] Speaker 04:
There's no commonality between the classes.

[00:25:37] Speaker 04:
There's nothing linking these classes together, except for... Commonality is the delay that occurs.

[00:25:42] Speaker 04:
Well, that's the effect.

[00:25:44] Speaker 04:
But there's nothing in particular that Mr. Monk has pointed to in his petition or in his papers linking these classes together.

[00:25:51] Speaker 04:
Under Veterans Court law, it must be an action that amounts to an arbitrary refusal by the secretary to act.

[00:25:58] Speaker 04:
There is nothing here except an overburdened system, which as a matter of precedent under the Veterans Court under Costanza, is not sufficient to entitle a plaintiff to, excuse me, entitle

[00:26:10] Speaker 04:
petitioner to a right of mandamus relief.

[00:26:12] Speaker 02:
So that's your basic point, is you can't get relief in a class action against an overburdened system?

[00:26:17] Speaker 04:
And that would be consistent with Veterans Court precedent, yes, Your Honor.

[00:26:21] Speaker 04:
And that's distinguishable from, for example, the Robaldo case in which Mr. Robaldo challenged a memorandum issued by the Secretary identifying certain cases that it linked together and refusing to act on those cases.

[00:26:33] Speaker 04:
And the Veterans Court determined

[00:26:35] Speaker 04:
that the secretary did not have the authority to arbitrarily stay those cases and move along with others.

[00:26:42] Speaker 04:
And in that instance, the Veterans Court did afford some sort of class relief, even if not in the form of a formal class action mechanism, which seems to be what Mr. Monk is really asking for.

[00:26:53] Speaker 04:
And unless Your Honors have any other questions, just... Okay, thank you.

[00:27:01] Speaker 05:
Thank you, Ms.

[00:27:02] Speaker 05:
Kapowski.

[00:27:11] Speaker 05:
Thank you, Your Honours.

[00:27:13] Speaker 01:
Thank you, Your Honours.

[00:27:16] Speaker 01:
I'd first like to return to the concession the government just made on the authority.

[00:27:20] Speaker 01:
If the CAVC does indeed, as the government says, have the authority, then this case should just be remanded.

[00:27:27] Speaker 02:
Oh, we'd better decide movement.

[00:27:28] Speaker 01:
Sure.

[00:27:29] Speaker 01:
And the government mischaracterized the standards.

[00:27:34] Speaker 01:
Your question, Judge, is exactly on point.

[00:27:37] Speaker 01:
inherently transitory applies if there hasn't been a denial of class certification.

[00:27:41] Speaker 01:
Gerrity, Rober, those cases apply if there has been a denial of class certification as there has been here.

[00:27:47] Speaker 02:
How do they argue about that?

[00:27:48] Speaker 02:
They're saying that the Rule 23 standards of Gerrity don't apply to whatever class authority exists under the All Rights Act.

[00:27:55] Speaker 01:
Of course, Your Honor, but that speaks to exceptions

[00:27:59] Speaker 01:
that aren't tied, the exceptions to mootness, inherently transitory, capable of repetition and evading review, that are well outside of the Rule 23 context that apply to any plaintiff.

[00:28:11] Speaker 01:
In a class context, inherently transitory, it requires that there be a class of currently suffering people

[00:28:20] Speaker 01:
The government also mischaracterizes the timeline.

[00:28:22] Speaker 01:
The timeline is for inherently transfer and for the capable of repetition and evading review, would be the moment from mandamus filing to the secretary's response.

[00:28:32] Speaker 01:
The secretary responds very quickly, as the CABC has noted in Yonge-Shinseki.

[00:28:38] Speaker 01:
And this court's appellate review of those would be seriously frustrated if the government could continually just respond and move out the question.

[00:28:48] Speaker 01:
we'd never be able to certify a class in the normal course of litigation or any questions that arose on appeal.

[00:28:55] Speaker 01:
We never resided because the individual named plaintiff would just keep being mooted.

[00:28:59] Speaker 02:
So it ties out the exception.

[00:29:01] Speaker 02:
Could you just spend a moment addressing their argument that a class action challenging delays that are inherent in the system isn't appropriate?

[00:29:14] Speaker 02:
I mean, there is language in the

[00:29:16] Speaker 02:
in the mandamus cases that suggest that the only way you can challenge delay is to say it's a delay that's unusual, it's not inherent in the system itself.

[00:29:28] Speaker 02:
So they're saying, well, what you're doing here is you're challenging the system and you're trying to get relief when the cause of the problem is lack of resources.

[00:29:41] Speaker 01:
Yes, Your Honor.

[00:29:43] Speaker 01:
The question of whether, that's the mayor's question, that's appropriate for remand.

[00:29:49] Speaker 01:
But that would be something that we'd have to plead.

[00:29:52] Speaker 01:
Below we could show that it was amounted to an arbitrary refusal of the Act with regards to the class.

[00:29:59] Speaker 01:
We're far from that point.

[00:30:00] Speaker 01:
The CAVC never walked through that door.

[00:30:02] Speaker 02:
I understand, but I'm just asking you to address it nonetheless.

[00:30:06] Speaker 01:
Of course.

[00:30:07] Speaker 01:
So what we'd imagine here is that

[00:30:09] Speaker 01:
If the CAVC had entertained that it had the authority, it would have done as it does in other mandamus petitions.

[00:30:15] Speaker 01:
It orders the secretary's response.

[00:30:17] Speaker 01:
The secretary could respond with regards to the class allegations.

[00:30:20] Speaker 01:
We could have a discussion about that.

[00:30:24] Speaker 01:
And as we point out in our petition, there's several different steps.

[00:30:30] Speaker 01:
There's delays at every step of the appellate process.

[00:30:32] Speaker 02:
So he says, and I think this is probably somewhat predictable, that we don't have the resources to do this faster.

[00:30:39] Speaker 02:
And unless Congress gives us the resources to do this faster, we can't do anything about it.

[00:30:43] Speaker 02:
And under those circumstances, you can't issue a writ to mandamus requiring us to do something which is impossible in light of our existing funding.

[00:30:51] Speaker 02:
What's your response to that?

[00:30:52] Speaker 01:
Well, again, Your Honor, that's down.

[00:30:55] Speaker 02:
I understand that.

[00:30:56] Speaker 02:
I still want your response to it.

[00:30:59] Speaker 01:
Veterans are the only public beneficiaries that are singled out that can't challenge VA delays in court.

[00:31:08] Speaker 01:
The VA never has to answer for his delays.

[00:31:10] Speaker 01:
We don't know if it's arbitrary.

[00:31:12] Speaker 01:
We don't know if there hasn't been any fact-finding as to whether or not the delays at issue here are an arbitrary refusal.

[00:31:20] Speaker 02:
Suppose the record establishes that the delays result in lack of congressional funding.

[00:31:26] Speaker 02:
Can the CAVC and our court grant relief under those circumstances?

[00:31:31] Speaker 01:
Maybe, Your Honor.

[00:31:32] Speaker 01:
I'm not sure it would depend on the particular fact-finding in that case.

[00:31:38] Speaker 01:
Again, the question of authority is an important one.

[00:31:42] Speaker 01:
And the CAVC never walked through that door.

[00:31:44] Speaker 01:
They only ordered a response, for instance, on the individual petition.

[00:31:47] Speaker 01:
Would you keep coming back to something other than what I'm asking?

[00:31:52] Speaker 01:
Thank you, Your Honor.

[00:31:55] Speaker 01:
The question of fact-finding.

[00:31:59] Speaker 01:
First of all, we shouldn't read into Congressional inaction.

[00:32:03] Speaker 01:
And the order might spur Congressional inaction.

[00:32:06] Speaker 01:
We're not sure.

[00:32:07] Speaker 01:
This is about the power of the CAVC as the competent judicial actor should a mandamus issue under those terms, even with a finding that Congress had underfunded, maybe that was a contributing factor, is the power of the CAVC to issue that order and the VA to respond accordingly.

[00:32:28] Speaker 01:
And then there could be a question of whether it was appropriate, the response, but again,

[00:32:35] Speaker 01:
There's no reason that the veterans should face years of delay, four years on average.

[00:32:41] Speaker 01:
At every stage of the process, delays, 23 months strictly just to certify an appeal from the regional offices back to the VBA, just passing paperwork taking 23 years.

[00:32:52] Speaker 01:
And veterans alone, among all other public beneficiaries, Medicaid recipients, social security recipients, immigrant respondents in court, are precluded from currently

[00:33:04] Speaker 01:
certifying or seeking aggregate relief based on the CABC's erroneous holding of law.

[00:33:12] Speaker 01:
And so we would ask that this panel remand the case for further consideration, correcting the erroneous conclusion of all the CABC never has the authority to aggregate claims.

[00:33:22] Speaker 01:
Thank you, Your Honors.

[00:33:22] Speaker 01:
If you have no further questions.

[00:33:24] Speaker 05:
OK.

[00:33:25] Speaker 05:
Thank you.

[00:33:25] Speaker 05:
The case is taken under submission.

[00:33:27] Speaker 05:
We compliment the students and your advisors for your presentation.

[00:33:33] Speaker 05:
have your own as well as counsel for the government.

[00:33:38] Speaker 05:
Thank you all.