The Extraordinary Power of Numbers
The National Veterans Legal Services Program (NVLSP) uses its expertise in veterans law to change the lives of veterans and their families. Through class action lawsuits, NVLSP brings claims on behalf of a group of individuals who have been wrongfully denied the benefits they have earned through their service to our country.
Since its founding, NVLSP has represented thousands of veterans in class actions. Most recently, our class action litigation pertains to:
Wolfe v.Wilkie* (Updated May 2020)
On Septermber 9, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) ruled in a case styled Wolfe v. Wilkie, that VA’s 2018 reimbursement regulation violates the Emergency Care Fairness Act of 2010 (ECFA) that requires VA to reimburse veterans for the emergency medical expenses they incur at non-VA facilities that are not covered by the veteran’s private insurance. The CAVC certified the case as a class action and ordered the VA to remedy its unlawful regulation by reimbursing veterans for all of their past and future out-of-pocket emergency medical expenses not covered by the veteran’s private insurance other than copayments. The class action petition was filed on behalf of veterans Amanda Wolfe and Peter Boerschinger by the National Veterans Legal Services Program (NVLSP) and Sidley Austin LLP on a pro bono basis.
This ruling is the second time the CAVC struck down the VA regulation governing reimbursement of emergency medical expenses. Five years ago, NVLSP appealed to the CAVC on behalf of veteran Richard Staab after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open heart surgery purely because Medicare covered part of the emergency care bill. In the CAVC’s 2016 landmark precedential decision in Staab v. Shulkin, it invalidated the VA regulation that prohibited reimbursement for any of the veteran’s emergency medical expenses merely because some, but not all of those expenses, were covered by the veteran’s insurance. The Court held in the Staab case that Congress intended in the ECFA for VA to step in as a “secondary payer” where other health care insurers cover only a portion of the cost of the veteran’s emergency treatment and the regulation violated this statute. Yesterday’s ruling struck down the regulation that VA promulgated in 2018 to replace the regulation struck down by the CAVC in Staab.
Based on the VA’s past estimates, compliance with this decision will require VA to pay from $1.8 billion to $6.5 billion in reimbursements to hundreds of thousands of veterans with reimbursement claims filed or pending during the period from 2016-2025.
This is only the second time in the CAVC’s 30-year history that it has granted a class action. In June 2019, CAVC certified its first class action in Godsey v. Wilkie, also brought by NVLSP.
*On April 6, 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) granted the Motion for Enforcement of the Court’s Sept. 9, 2019 decision in Wolfe v. Wilkie filed by NVLSP, which serves as counsel for the class of veterans who have applied to the VA for reimbursement of their emergency medical expenses incurred at non-VA facilities that are not covered by the veteran’s private insurance. The April 6th Order requires the VA to begin one week later, on April 13th, to mail more than 1 million corrective notices to veterans who had applied for reimbursement, but whom VA had misinformed about what emergency medical expenses the VA can reimburse. VA had admitted earlier in the Wolfe case that these inaccurate notices could have deterred the veterans from pursuing their reimbursement claims. The Court rejected VA’s argument that it should not send any of the corrective notices until the appeal VA contemplates filing is finally decided by the U.S. Court of Appeals for the Federal Circuit.
The April 6th Order also requires VA to begin, no later than May 28, 2020, to re-decide the more than 72,000 VA decisions denying reimbursement that were invalidated by the Veterans Court because they violated the statute that governs VA reimbursement of the emergency medical expenses incurred by veterans at non-VA facilities. The Veterans Court rejected VA’s plea that it should not have to redecide these cases or make payments until the appeal VA contemplates filing is finally decided by the Federal Circuit.
We have created an information page as a resource for veterans who are members of the class in the class action lawsuit known as Wolfe v. Wilkie. Please go to Wolfe Class Member Information Page. If you are a member of the class in the Wolfe case, and have questions about the case, you can submit your questions to NVLSP by using the “Wolfe Class Member Form”
On June 13, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) certified its first class action. The case, styled Godsey v. Wilkie, was a petition for extraordinary relief brought by Covington & Burling LLP and the National Veterans Legal Services Program (NVLSP). The petition was filed on behalf of veterans James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, Pamela Whitfield. It sought relief for all similarly situated VA benefits claimants who have filed an appeal to VA’s highest tribunal, the Board of Veterans’ Appeals (Board), and since have suffered extended delays waiting for VA to begin moving their appeals forward in a process called “certification.”
The CAVC partially granted the petition in the same order that it certified the class action, concluding that 18-month or longer VA delays to begin that process are “per se unreasonable.” “Such delays are particularly intolerable,” the Court stated, “because they consist of nothing but waiting in line: ... no action whatsoever on the part of VA” while the veterans have continued to wait.
The National Veterans Legal Services Program (NVLSP) represents some of the veterans whose VA appeals have been delayed for a long time in the recently certified Godsey Class Action. In order to help us determine if you are covered by this Class Action, please complete this form.
This lawsuit alleged that between December 17, 2002 and October 14, 2008 the military illegally denied benefits to thousands of servicemembers who returned from Iraq and Afghanistan with PTSD and were discharged. These servicemembers were entitled to but denied a minimum 50% disability rating for PTSD. Working closely with Morgan Lewis & Bockius LLP and lawyers from Hewlett-Packard Company, NVLSP reached a settlement agreement that provided retroactive and future disability benefits to more than 2,200 class members. On July 29, 2011, a news conference was held to announce a proposed settlement highly favorable to members of the class. On December 22, 2011, Judge George Miller at the U.S. Court of Federal Claims gave final approval to the settlement for the Sabo v. United States lawsuit.
Nehmer v. U.S. Department of Veterans Affairs (VA)* (Updated November 2020)
This landmark case has already resulted in the delivery of over $4.6 billion in VA compensation benefits to veterans and their survivors. The case originated with VA regulations mandating denial of benefits claims by Vietnam veterans who had diseases associated with exposure to Agent Orange. In 1989, a federal court found the regulation unlawful, and class members received retroactive and prospective benefits. NVLSP has continued to represent the class as the VA has recognized additional diseases associated with Agent Orange exposure, including three recognized in August 2010. In 2011, as class counsel, NVLSP began monitoring over 150,000 VA adjudications of claims related to those three new diseases to make sure Vietnam veterans and their survivors received the benefits they deserve. NVLSP has reviewed over 10,000 of those cases which resulted in approximately $16 million in additional retroactive and prospective benefits to these class members. NVLSP’s monitoring efforts are ongoing.
In an effort to secure retroactive benefits for thousands of so-called Blue Water Vietnam veterans, on July 10, 2020, NVLSP filed a motion for enforcement of the 29-year old class action Consent Decree in Nehmer v. United States Veterans Administration in the U.S. District Court for the Northern District of California. The motion was filed with the pro bono assistance of Paul Hastings LLP.
On November 5, 2020 the U.S. District Court for the Northern District of California ruled in favor of thousands of so-called Blue Water Navy Vietnam Veterans and their survivors in response to the motion filed by attorneys from NVLSP to enforce the 29-year old class action Consent Decree in Nehmer v. U.S. Department of Veterans Administration (VA) . The Court ordered the VA to automatically readjudicate thousands of benefits claims that the Court found had been wrongly denied under the Consent Decree. The Court also ordered the VA to pay retroactive compensation if it finds the veteran served in the territorial seas of Vietnam.