Stunning Class Action news for veterans

[Berta]

https://law.yale.edu/yls-today/news/historic-decision-veterans-court-will-allow-class-actions

This is really incredible news!

Veterans have always been prohibitedf from filing Class Action cases that involved the VA. I am cntacting Yale Tomorrow- ( they did some radio shows with us in the past-dont know if it is the same legal team) to see if they have included widows of veterans...

 

"WASHINGTON — A federal court ruling this week opened the possibility for veterans to file suit against the Department of Veterans Affairs as a class rather than individuals, a move that advocates say could dramatically shift how legal cases against the bureaucracy are handled.

The ruling, Monk v. Wilkie, came from the U.S. Court of Veterans Appeals. The eight-justice panel ultimately ruled against the plaintiff’s claim that their case should proceed as a class-action suit, arguing it failed to meet previously established standards for such legal consideration.

But they did say that in “appropriate cases” in the future, class-action lawsuits would be entertained.

“This is a watershed decision, and its importance should not be diminished merely because the court declined to certify this proposed class,” Chief Judge Robert Davis wrote in the opinion. “On the contrary, the court's decision will shape our jurisprudence for years to come and, I hope, bring about positive change for our nation's veterans.”

 Veterans ask court to reinstate lawsuits over burn pits in Iraq, Afghanistan
Veterans ask court to reinstate lawsuits over burn pits in Iraq, Afghanistan
Veterans and their families asked a federal appeals court Wednesday to reinstate dozens of lawsuits alleging that a government contractor caused health problems by using burn pits during the wars in Iraq and Afghanistan.

By: Denise Lavoie, The Associated Press
Fellow appeals court Judge Michael Allen said the decision “has been decades in coming and holds great promise as a means to address systemic problems in the VA system.”

 

https://www.militarytimes.com/news/2018/08/24/court-ruling-allows-class-action-lawsuits-against-va/

Monk V Wilkie- I will try to find that case----

Can you imagine this????  Any class of veterans who have commonality can file a lawsuit under Class Action!

 

The Burn Pit vets are a good example- I hope veterans take advantage of this new legal decision.This is what can change the VA for the better!!!!!!!!!!!!!

 

 

 

 

[jfrei]

Funny thing about that burn pit registry every time Ive logged on it says I have no deployments eligible even though I watched the burn pits at night when falling asleep to the red smoking sky in Bastion. I've called numerous numbers and emailed but no luck. Right now I'm ok as far as not having to do with my residuals of my sTBI but was diagnosed with seasonal allergies my va primary doc said it could have came from the burn pits when there and  he dx me at 28. So now I take allergy medicine not life or death now. But the fact they said I was never there looks dumb with my other disabilities due to the deployment time. I gave up trying to registry early last year.... Is there any importance of this or since I'm 100 %  P and T has no benefit for me? MESSAGE the records we have for you do not contain an eligible deployment. (See Below) unless when they say Afghanistan Bastion doesn't count

Edited August 27, 2018 by jfrei

[jbasser]

Berta, I am on it.

Basser

 

[Berta]

Great John- I have not had a second today to call Jerrel-or even email you and Jerrel-----so busy-on the PC -

This might be the answer to Blue Waters if the Senate craps out on the Bill-

and maybe even the way Project SHAD/ and 112 vets can get those classified documents-----and maybe even a final answer to their claims....that were all denied-

This is a biggy!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Jeffery- NVLSP has a Class Action in progress re: burn pits.

 

[SgtStelmo]

Berta,

I find you to be an extremely learned individual, but I must take exception to one thing you said earlier in this thread, and I will keep my fingers crossed I am not the errant individual.  You said that an individual cannot file a class action lawsuit, and I am not sure you are correct in this context.

Let me start by referencing Broncovet, who queried about the Nehmer class action lawsuit.  His answer is simple, Nehmer was decided in a regular Federal Court that maintains class action jurisdiction, while Monk conferred upon the abnormal federal court, the CAVC, to hear a class action.  Now I suppose using the word 'abnormal' is probably too strong a declaration, but the reality is that the CAVC operates under a whole set of rules apart from any normal Federal court.

The United States is a sovereign state, and as such, can pretty much do as they please without regard to inferior jurisdictions.  For instance, it is against almost every state law to practice law without a license.  Yet you can do so in the CAVC.  If the CAVC approves you, and a law license is not a prerequisite, their decision trumps a particular State law.  (Generally, please see CAVC Rule 46 (a) (2), but also note Rule 46 (b) (1) (F).

The CAVC was set up to be Veteran friendly.  Thus, they allow a non-lawyer to argue a case, which no regular Federal Court would consider.  So this refutes the general assertion that a lawyer is necessary.  And there is one other thing to mention.

I have long said one can file anything in any court for any reason.  It is the prevailing on the merit's that matters though.  Any Veteran who is not an attorney can file a lawsuit in the CAVC pro se (I prefer to use the term in propria persona).  At the same time as they file the suit they can file two motions.  The first motion would be entitled, "Motion to Certify Class Action Status".

Technically speaking, one cannot file a class action, they must have a normally filed suit certified as a class action.  In other words, they need the Court to approve it, which is never a guarantee.  Many such motions have failed in one federal court and/or another.  Then we move on to the second motion, which would be entitled "Motion to Appoint Attorney" moving the Court to appoint counsel.

If the Veteran pleads a well versed motion showing a class of Veterans are suffering irreparable harm which will magnify exponentially without immediate declaratory relief, the Court would find it hard to deny the motion.  I contend such a denial would be a permissible interlocutory appeal as well. 

So in closing I believe that if a veteran believes in their cause, takes his/her time, does his/her homework, such persistence could well be the squeaky wheel that gets the oil.

 

[Berta]

Never hesitate to disagree with me-I sure dont know it all.

This decision above  regards only Class Actions involving the VA.

 

You are correct that anyone can file a Class Action law suit. But this Nolo article mentions their need for a good attorney-https://www.alllaw.com/articles/nolo/personal-injury/class-action-lawsuit.html

Many years ago I filed a Class Action on behalf of all disabled veterans- I forget what the actual premise was at that time- it is at least 6 or 7 PCs or more ago.

But my cause of action was not accepted by the Court.

 

Because I was not a member of that Class.

 

Maybe if I had a good lawyer to help me, I could have filed on behalf of all disabled veterans and their survivors- I would have been in that class.

“If the Veteran pleads a well versed motion showing a class of Veterans are suffering irreparable harm which will magnify exponentially without immediate declaratory relief, the Court would find it hard to deny the motion.  I contend such a denial would be a permissible interlocutory appeal as well.  “

I agree with that but I know the court's define class action in a very specific way.

 

Nehmer was a class action, because Beverly Nehmer's case was taken up by NVLSP.

We are in psychological warfare with the VA.It is a paper or digital War of the Words.

I make war plans for every claim I have.

“So in closing I believe that if a veteran believes in their cause, takes his/her time, does his/her homework, such persistence could well be the squeaky wheel that gets the oil.”

 

SO TRUE- I have been at times a lot more vocal and louder than a squeaky wheel.

My main weapons of choice are 38 CFR, 38 USC, M21-1MR, and any precedent decisions from CAVC, COVA, or the OGC.

 

Certifying a class- that is the biggest problem of all for lawyers and pro se litigants.

That is what takes a lot of time, energy and money.

 

One could  get a lot of input from other vets who have had problems with the VA,  by starting a web site devoted solely to the certification process...but then it has to be narrowed down to the commonality factor as well.

 

The key commonality factor to Nehmer is that it covers only incountry Vietnam vets, and that they all have been presumed to have been exposed to one of the worse weapons of mass destruction ever- Agent Orange whether they were at Danang air base and in numerous fire fights during their year in Hell or served in an air conditioned attache's office in Saigon. IOM and NAM reports that VA accepted as proof of disabiity solely due to AO, over the years, also supported the commonality factor of vets in similar situations....ie-many other Vets exposed to AO had the same disabiities......but I am not stating that well----- those reports VA used , say it better than I can.

 

 

 

 

 

 

 

 

 

[Berta]

Just to add... commonality is but one important key factor to Class Actions.

This primer covers the basics of this type of claim:

https://www.classactiondeclassified.com/wp-content/uploads/sites/26/2017/08/a_primer_class_certification_under_federal_rule.pdf

Federal Rule 23 must be followed but also every District Federal court has their own packet of rules as well.

I feel that a good cause for Class Action would be this:

MANY vets and survivors have their claims denied right off the bat- often solely due to a lousy C & P exam.

C & P exams are a highy controlling factor in the claims process.

Some vets fight the C & P and get a better one that helps their claim  to succeed.

But MANY of us have been forced to acquire costly IMO/IMEs to have a full medical rationale, based on the established record, that not only combats a lousy C & P exam but leads to a successful outcome.

Many ,who were in that position are part of a class, and the proof would be copies of the faulty C & P exams, any evidence that VA examiner did not have any expertise to opine on the claim, and /or did not consider any probative medical evidence at all, and/or made untrue statements in the C & P results , along with an IMO/IME the claimant had to obtain, that fully awarded the same claim, based on the same medical records  that the examiner opined on.

I have griped to the WH Hot line about this and briefly to the OAWP (Office of Accountability -Whistle Blower Protection) but my issue with the OAWB regards a big VA fish to fry-and I have  to keep my focus and the evidence I have sent to them, on that issue.

They do not accept mailed in submissions, but accept those attached to emails. I dealt with the DC office but I understand they are also in satelitte offices across the country.

Anyone can file a complaint with OAWB:

OAWP Anonymous Toll-Free Disclosure Hotline: (855) 429-6669

OAWP Email: vaaccountabilityteam@va.gov

https://www.va.gov/accountability/  Mission Statement:

 

"OUR MISSION

The Office of Accountability and Whistleblower Protection serves to improve the performance and accountability of VA senior executives and employees through thorough, timely and unbiased investigation of all allegations and concerns. Where these actions are found factually true, the Office will provide recommended actions related to the removal, demotion or suspension based on poor performance and/or misconduct. Additionally, OAWP provides the protection of valued VA whistleblowers against retaliation for their disclosures."

 

 

 

 

 

 

 

 

 

 

 

Edited November 8, 2018 by Berta
added more