Monk v. Shulkin

Decision Date26 April 2017
Docket Number2015-7092, 2015-7106
Citation855 F.3d 1312
Parties Conley F. MONK, Jr., Claimant–Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent–Appellee
CourtU.S. Court of Appeals — Federal Circuit

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. Mizer, 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 VA's 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 VA's 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 benefits. The action concerning this NOD remained pending as of the date of oral argument in this case.


We first review as a preliminary issue the Secretary's assertion that we lack jurisdiction over this appeal. Our jurisdiction over appeals of decisions of the Veterans Court is limited. We may only review Veterans Court decisions with respect to the validity of a decision of the Veterans Court on a rule of law or of any statute or regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Veterans Court in making the decision. 38 U.S.C. § 7292(c). This appeal raises a question of legal interpretation that is clearly within our jurisdiction. Cox v. West , 149 F.3d 1360, 1362 (Fed. Cir. 1998). We review the Veterans Court's interpretations of statutes de novo . Newhouse v. Nicholson , 497 F.3d 1298, 1301 (Fed. Cir. 2007).

The Secretary asserts that this court lacks jurisdiction because Mr. Monk's appeal has been rendered moot. As noted above, after Mr. Monk filed his appeals, the VA awarded Mr. Monk a one hundred percent (100%) disability rating, the highest rating possible. The Secretary argues that because the disability benefits award resolved Mr. Monk's claim, there exists no justiciable controversy.

Article III of the Constitution limits our jurisdiction to cases and controversies. U.S. CONST . art. III, § 2. The case-or-controversy requirement ensures that federal court adjudication is limited to actual and concrete disputes, the resolutions of which have a direct consequence on the parties. Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) ; U.S. Parole Comm'n v. Geraghty , 445 U.S. 388, 395–96, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc. , 527 F.3d 1278, 1290–91 (Fed. Cir. 2008).

A case is said to lack an actual or concrete dispute where the relief sought by a plaintiff is satisfied or otherwise rendered moot. See DeFunis v. Odegaard , 416 U.S. 312, 317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) ("The controversy between the parties has thus clearly ceased to be ‘definite and concrete’ and no longer ‘touch(es) the legal relations of parties having adverse legal interests.’ ") (quoting Aetna Life Ins. Co. v. Haworth , 300 U.S. 227, 240–41, 57 S.Ct. 461, 81 L.Ed. 617 (1937) ). A case is moot when it no longer presents live issues or "the parties lack a legally cognizable interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).

The Secretary argues that once Mr. Monk obtained full relief, he no longer possessed a legally cognizable interest in the outcome of the appeal. We agree that Mr. Monk's appeal concerning his individual disability claim is rendered moot.2 We disagree, however, that Mr. Monk's appeal of the Veterans Court decision on class certification is also moot.

The issue of mootness in the context of class actions has a long history. In particular, significant litigation has focused on...

To continue reading

Request your trial
98 cases
  • Wolfe v. McDonough
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 17, 2022
    ... ... O'Rourke , 891 F.3d 1338, 1343 (Fed. Cir. 2018) (citing Telecomms. Rsch. & Action Ctr. v. FCC , 750 F.2d 70, 76 (D.C. Cir. 1984) ); Monk v. Shulkin , 855 F.3d 1312, 1318 (Fed. Cir. 2017) (citing Cox v. West , 149 F.3d 1360, 1363 (Fed. Cir. 1998) ) ("[T]he Veterans Court has the ... ...
  • Skaar v. Wilkie
    • United States
    • United States Court of Appeals For Veterans Claims
    • December 6, 2019
    ... ... of first impression. For many years, we held this Court ... categorically lacked the power to certify classes. See ... Monk v. McDonald , No. 15-1280, 2015 WL 3407451, at *3 ... (May 27, 2015) ( Monk I ); Harrison v ... Derwinski , 1 Vet.App. 438, 439 (1991) ... Circuit) held we possess, at least in certain contexts, the ... authority to certify class actions. Monk v. Shulkin , ... 855 F.3d 1312, 1321-22 (Fed. Cir. 2017) ( Monk II ) ... We then held we would, in appropriate cases, certify classes ... ...
  • Prewitt v. McDonough
    • United States
    • United States Court of Appeals For Veterans Claims
    • December 5, 2022
    ...class action cases "under the All Writs Act, other statutory authority, and the . . . Court's inherent powers." Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017). The Court also has the power to issue a writ of mandamus and all writs appropriate in aid of our jurisdiction and our prospe......
  • Ashford Univ., LLC v. Sec'y of Veterans Affairs
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 3, 2020
    ... ... To be sure, the Board process has often been slow to process claims. See Monk v. Shulkin , 855 F.3d 1312, 131718 (Fed. Cir. 2017). But we are confident thatbecause of the large number of veterans affected and the need for ... ...
  • Request a trial to view additional results
3 books & journal articles
    • United States
    • University of Pennsylvania Law Review Vol. 168 No. 6, May 2020
    • May 1, 2020
    ...create insurance subsidies for every state); Halbig v. Sebelius, 27 F. Supp. 3d 1, 24-25 (D.D.C. 2014) (same); see also Monk v. Shulkin, 855 F.3d 1312, 1320 n.4 (Fed. Cir. 2017) (relying on CBO report for assumption Congress intended Veterans courts to allow class actions); U.S. House of Re......
  • Military and Veteran Highlights of 2021
    • United States
    • California Lawyers Association California Litigation Review (CLA) No. 2021, 2021
    • Invalid date certify and adjudicate class actions; it also held that the CAVC could create its own class action rules. (Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017). The next year, the CAVC acknowledged its authority to certify class actions. (Monk v. Wilkie, 30 Vet. App. 167 (2018), aff'd, 978 F.......
  • Military and Veterans in the Law, 2020
    • United States
    • California Lawyers Association California Litigation Review (CLA) No. 2020, 2020
    • Invalid date
    ...will report a few of the many current legal happenings concerning active duty military and veterans.Class Actions In Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), the Federal Circuit held that under the All Writs Act, its own enabling statutes and by virtue of its inherent powers, the Co......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT