U.S. Department of Veterans Affairs in Washington, D.C. April 9, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Of all the justifications for being able to litigate as a class, it's hard to top this one by a Vietnam War veteran who just won a historic ruling.

“In the Marine Corps, I was taught to fight as part of a unit,” said Conley Monk Jr.. “I'm pleased the court will no longer require that each veteran fight for justice alone.” 

Represented by Simpson Thacher & Bartlett star litigator Lynn Neuner and law students from Yale, Monk prevailed last week before the U.S. Court of Appeals for Veterans Claims. In an en banc decision, the court for the first time held that veterans may bring class actions against the U.S. Department of Veterans Affairs.

In the words of the court's chief judge, Robert Davis, it is a “seismic shift.”

The veterans court system has its own (often arcane) procedures, but in the short-term, the court said it would adopt the same rules for class actions that U.S. federal district courts use. That means veterans won't have to wait while the court undertakes a cumbersome rulemaking process—they can bring class actions against the VA immediately.

“We applaud the veterans court's landmark decision, which will benefit the hundreds of thousands of people who served their nation and are currently navigating their claims for disability benefits through the [VA's] backlogged administrative system,” Neuner said in a written statement.

It was only a partial win, however. While the appellate judges on remand from the Federal Circuit unanimously agreed to allow class actions, the court in a 4 to 4 split declined to certify Monk's class, citing lack of commonality.

“The fact that the court did not find aggregate action appropriate in this case does not change the fact that this is a watershed decision, and its importance should not be diminished merely because the court declined to certify this proposed class,” the chief judge wrote. “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 and ensure that justice is done more efficiently and timely.”

The case began when Monk applied for disability benefits for psychological and physical injuries that he said stemmed from his combat duty in Vietnam, including post-traumatic stress disorder, major depressive disorder, hepatitis, diabetes and hypertension. He also suffered from several strokes.

His application was initially denied. He appealed and eventually got a favorable decision.

But a central criticism of the veterans' court system is that it's so slow—an appeal takes five to six years on average.

In Monk's case, veterans court Judge Michael Allen in his dissent compared the system to the fictional case of Jarndyce v. Jarndyce in “Bleak House” by Charles Dickens (a case that was pending so long, Dickens wrote, that “[i]nnumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.”)

For Monk—elderly, in failing health, on the verge of homeless after a fire severely damaged his home—waiting years for his rightful disability benefits was a serious hardship.

He isn't alone. The VA faces a backlog of more than 450,000 appeals. And they're not frivolous cases clogging the system. The Board of Veterans Appeals grants or remands the veteran's appeal more than 75 percent of the time.

In 2015, Monk filed a petition with the Court of Appeals for Veterans Claims on behalf of himself and others similarly situated for extraordinary relief. He wanted a writ of mandamus from the court directing the Secretary of the Department of Veterans Affairs to decide certain appeals within one year. Monk argued that the delay violated his the right to due process under the Fifth Amendment and amounted to an arbitrary refusal to act.

Initially, the veterans court ruled that it had no authority to hear class actions. But last year, the Federal Circuit reversed and remanded the case.

Neuner, who is Simpson Thacher's co-administrative partner and a member of the firm's management committee, argued for Monk on remand, as did two students from Yale Law School Veterans Legal Services Clinic.

 

Airbnb Hires Power Duo to Sue New York

Airbnb is on the offense in New York, hiring two top litigators to sue the city over an ordinance that it calls an “extraordinary act of government overreach” at the behest of the hotel lobby.

Roberta Kaplan, who left Paul, Weiss, Rifkind, Wharton & Garrison last year to found what's now known as Kaplan Hecker & Fink, has teamed up with Sullivan & Cromwell's Sharon Nelles, a member of the firm's executive committee with a long roster of blue-chip clients.

On Friday, the pair filed suit in U.S. District Court for the Southern District of New York, challenging a city ordinance that requires Airbnb and other home-sharing platforms to report information each month about their “hosts”—people who rent out their homes to travelers for short-term stays. The government wants to know the rental addresses, the names of the hosts, how often they're renting their homes, and for how much money.

Kaplan and Nelles say the information is private, and that “No probable cause, notice, or legal review is contemplated in connection with the bulk collection of this data, and no real restrictions are placed on its use or dissemination.”

The complaint seeking injunctive and declaratory relief alleges that the ordinance violates the First and Fourth Amendments to the U.S. Constitution and Article I, Section 12 of the New York Constitution, as well as the federal Stored Communications Act.

 

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