Class actions before Court of Appeals for Veterans Claims

(a)

Authority for Court of Appeals for Veterans Claims To hear class actions

Subchapter II of chapter 72 of title 38, United States Code, is amended by adding at the end the following new section:

7270.

Class actions

(a)

In general

The Court, acting as a panel or en banc, may hear class action appeals in accordance with this section. (b)

Prerequisites

One or more appellants may bring an action under this chapter as the representative party of a class on behalf of all members of the class only if the following criteria are met: (1)There is at least one question of law or fact common to the class. (2)The class is likely to consist of at least 50 members. (3)The resolution of the common questions of law or fact is likely to have a material effect on the claims of the members of the class (including with respect to the process by which such claims are adjudicated). (4)The representative party will fairly and adequately protect the interests of the class. (c)

Certification procedure

(1)Not later than 60 days after the date on which an appellant has filed an appeal, the appellant may file a motion with the Court to certify the appeal as a class action with respect to an issue that the appellant intends to raise on appeal. Such motion shall address the prerequisites under subsection (b), including by defining the class described in paragraph (2) of such subsection. The Court may waive such 60-day period for good cause shown, including with respect to instances where the appellant determined the appropriateness of the class action procedure as a result of the pleadings filed in the appeal after the filling of the notice of appeal. (2) (A)Upon the filing of a motion under paragraph (1), the Secretary shall— (i)make reasonable efforts to determine the approximate number of individuals with pending claims for benefits for whom class certification is sought under such motion; and (ii)file a response to such motion that— (I)includes the approximate number of individuals determined under subparagraph (A), including the efforts made by the Secretary to carry out such subparagraph (A); and (II)addresses the prerequisites under subsection (b). (B)The appellant may file a response to the response of the Secretary under subparagraph (A). (3)At an early practicable time after an appellant has filed a motion under paragraph (1) to certify the appeal as a class action and the Secretary has filed a response under paragraph (2)(A), the Court, acting as a panel or en banc, shall determine by order whether to grant class certification with respect to an issue considered under the appeal and allow the appellant to act as the representative party of the class. Such order shall— (A)address the prerequisites under subsection (b); and (B)if such class certification is granted under the order— (i)define, with specificity, the class and issue for which the class is certified; and (ii)appoint counsel for the class under subsection (e). (4)The Court, acting as a panel or en banc, may alter or amend an order issued under this section before final judgment as justice so requires. (5)An order granting class action under paragraph (3) shall direct the Secretary to notify members of the class who are reasonably identifiable in a form the Court determines practicable. Such notice shall state clearly, concisely, and in plain language— (A)a definition of the class certified; (B)a statement of the common questions of law or fact that will be subject to resolution by the Court on a class basis; (C)that a member of the class may enter an appearance through an attorney or nonattorney practitioner if the member so desires but such action is not necessary; (D)any other matters the Court determines appropriate. (6)In determining the class under paragraph (3), the Court may only include individuals who have, as of the date of the entry of judgment of the Court on the class action, filed a claim and such claim has not been finally resolved, including any appeals from a denial of such claim. (7)Any judgment in a class action (whether favorable or unfavorable to the class) shall include a description of the issue decided, the resolution of the issue, and the individual to whom notice of the certification of the action was directed. (d)

Conduct of appeal

(1)In hearing a class action, the Court may issue such orders as are necessary for the efficient and fair resolution of the action, including with respect to— (A)the determination of the manner in which proceedings will be conducted in order to advance the resolution of the common questions of law or fact; (B)whether additional notices should be made to members of the class concerning the status of the appeal or any other matter the Court determines appropriate; (C)whether the individual claims of members of the class should be stayed pursuant to paragraph (2) or any other orders the Court determines appropriate with respect to the maintenance of such individuals claims; and (D)any other matter the Court determines appropriate. (2)The Court may stay, in whole or in part, the individual claims of members of the class, including on a case-by-case basis, during the period in which the Court is considering the class action. In determining whether to issue such a stay, the Court shall consider— (A)the views of the parties; (B)whether issuance of such a stay would be likely to decrease the time that members of the class, the representatives of the class, and the Secretary would have to expend on the individual claims subject to the stay; and (C)whether such a stay is in the interests of justice in order to preserve the right of the members of the class to benefit from a favorable resolution of the common questions of law or fact by eliminating the possibility that individual claims would be finally denied during the pendency of the class action. (e)

Class counsel

(1)If the Court certifies a class action, the Court shall appoint counsel to represent the members of the class. Regardless of the number of applicants to serve as such a class counsel, in appointing such class counsel, the Court shall consider the following matters: (A)The work counsel has done in identifying and preparing for adjudication of the common questions of law or fact of the class action. (B)The experience of counsel in and knowledge of the law concerning benefits administered under this title. (C)The general experience of counsel in appellate litigation. (D)The record of the counsel for professionalism. (E)The resources that counsel will commit to representing the class. (F)If an attorney, whether the counsel is a member of a bar of a State in good standing. (G)Such other factors pertinent to the ability of counsel to fairly and adequately represent the interests of the class. (2)The Court may appoint an interim class counsel if the Court determines such appointment necessary to protect the interests of the class during the period preceding an appointment under paragraph (1). (3)Class counsel appointed under paragraph (1) or (2), and co-counsel appointed under paragraph (4), shall fairly and adequately represent the interests of the class at all times. (4)If the Court determines that there is more than one applicant who is qualified under paragraph (1) to serve as class counsel, the Court shall appoint the counsel whom the Court determines is best able to represent the interests of the class. Counsel appointed under this subsection may be counsel to an organization permitted to intervene under subsection (f) if such counsel meets the requirements of paragraph (1). (f)

Intervention

An organization named in or approved under section 5902 of this title may seek leave to intervene in a class action appeal. Such organization may seek to intervene during the period beginning on the date on which the motion is filed under paragraph (1) of subsection (b) and ending on the date that is 60 days after the date on which the Court grants class certification under paragraph (3) of such section. The Court shall grant intervention if the organization has an interest in the common questions of law or fact in the class action but may limit the intervention to specific matters determined appropriate by the Court. The Court may issue such other orders concerning the conduct of an intervenor as the Court determines necessary for the fair and efficient resolution of the class action. (g)

Settlement, voluntary dismissal, compromise, or agreed upon remand

The appeal of the appellant and a common issue of law or fact in a class action may be settled, voluntarily dismissed, compromised, or remanded by agreement only with the permission of the Court. The following procedures apply to a proposed settlement, voluntary dismissal, compromise, or agreed upon remand: (1)The Court shall direct notice to all members of the class who are reasonably identifiable and would be bound or affected by the proposal to settle, dismiss, compromise, or remand the matter. (2)If the proposal to settle, dismiss, compromise, or remand the matter would bind a member of the class, the Court may approve such proposal only after a hearing, for which notice is provided to the class, and on findings that such proposal is fair, reasonable, and adequate. (3)The parties seeing approval of a proposal to settle, dismiss, compromise, or remand the matter shall file a statement with the Court identifying any agreement made in connection with such proposal. (4)Any member of the class may object to the proposal to settle, dismiss, compromise, or remand the matter under any reasonable means the Court establishes for such objections and such objection may only be withdrawn with the permission of the Court. (h)

Attorneys’ fees and costs

Counsel appointed under subsection (e) to represent the class, and counsel for an intervenor under subsection (f), may seek an award of fees and costs under section 2412 of title 28. Nothing in this section shall affect any right of initial counsel for the representative party from also seeking an award of fees under such section. (i)

Appeals

Any member of the class, or individual who would be a member of the class if class certification was granted under subsection (c)(3), may appeal any decision of the Court issued under this section, including an order granting or denying class certification, under the terms set forth in section 7292 of this title. The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any such appeal and the provisions of subsections (d)(1) and (e) of section 7292 of this title shall be applicable to such appeal.

(b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 7269 the following new item:

7270. Class actions.