Interview: Veterans Affairs Secretary Robert Wilkie

Secretary of Veterans Affairs Robert Wilkie sits down with Military Times to talk about coming changes to the department, and how a personal story about his father helps drive him to improve it.

A federal court for the first time will allow a class-action lawsuit against the Department of Veterans Affairs to move ahead, a move that legal experts said opens the doors for a host of similar cases against the bureaucracy.

The decision, which could affect thousands of veterans, came late last week in the U.S. Court of Appeals for Veterans Claims. Last August, the same court for the first time ruled that class-action lawsuits would be allowed against VA in “appropriate cases,” but no such claims met court standards until now.

This case — Godsey v. Wilkie — sought relief for veterans facing lengthy waits for the department to certify their disability benefits appeals claims. The case was originally filed in 2017 on behalf of four veterans facing lengthy delays, but lawyers argued it should be broadened to include an entire class of individuals waiting for their benefits.

VA officials in oral arguments last year testified that more than 2,500 veterans had been waiting for certification for more than two years.

In a 2-1 decision, the court modified the class to include only veterans facing a wait of more than 18 months for VA to advance their appeals, saying those delays “deprive (veterans) of their constitutional right to due process.”

Plaintiffs hailed the decision as a win for the veterans frustrated by the appeals process and for advocates trying to force changes within the department.

“(The court’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 Bart Stichman, executive director of the National Veterans Legal Services Program, which has helped oversee the case. “It has been a long time coming.”

Legal advocates for years have pushed the courts to overturn a long-held ban on class-action lawsuits against the department, arguing it effectively allows VA officials to push off systemic corrections by addressing only complaints from individual veterans.

In private lawsuits, individuals must prove they suffered a specific injury or hardship in order to win judgment. But in class-action lawsuits, plaintiffs can show illegal or harmful activity against a larger group, bringing with it different standards for correction.

The court thus far has not allowed class-action lawsuits involving direct payouts to veterans. But Stichman said the move will force VA to address rules and regulations to respond to a collection a veterans complaints at once, instead of reacting to individual problems separately.

And the court in its decision said on these veterans’ complaints, VA has not acted quickly enough.

“We are not content to wait for the (VA) Secretary to remedy these unreasonable delays on his own,” the judges wrote. “The Secretary has had many years to act and initiate pre-certification review of class members' cases, and he has failed to do so … Simply put: the time has come for judicial intervention.”

The ruling requires VA to conduct a precertification review of all cases for all class members within 120 days for their initial filing, and requires the department to provide a status update on that work back to the court before the end of the summer.

Covington & Burling LLP and NVLSP officials will serve as counsel for the class.