UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

NO. 18-6091 

AMANDA J. WOLFE AND PETER E. BOERSCHINGER, 

INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PETITIONERS, 

V. 

DENIS MCDONOUGH, 

SECRETARY OF VETERANS AFFAIRS, RESPONDENT. 

Before GREENBERG, ALLEN, and FALVEY, Judges.

O R D E R

ALLEN, Judge, filed the opinion of the Court. FALVEY, Judge, filed a concurring 

opinion. 

Pending before us is petitioners' Motion for Appointment of a Special Master to Enforce 

the Court's Judgment (Motion).1

 The Secretary opposed the Motion. After careful consideration, 

and for the reasons we will explain below, we will grant the motion to the extent set forth in this 

order. 

We begin by laying out certain background principles that frame our consideration of the 

Motion, principles that underscore the unique nature of this order. Next, we briefly describe the 

salient background of the proceedings in this matter. While the parties are, no doubt, intimately 

familiar with the course of proceedings, it is important that everyone is on the same page. We then 

explain why we will appoint a special master and describe the scope of the special master's 

responsibilities. In other words, this section of the order will describe the extent to which we grant 

the Motion. And, finally, we will address who we appoint as the special master as well as certain 

administrative details about this appointment. 

I. BACKGROUND PRINCIPLES

 There are several background principles that broadly frame our resolution of the Motion. 

First, we recognize that, as we have said in the class action context before, we are operating in 

"uncharted waters."2

 As far as we are aware, this Court is the only appellate court to have class 

action authority. And this is the first time the Court has been confronted with a request to appoint 

a special master in connection with a judgment entered in a matter in which a class has been 

1

 The Court addressed petitioners' motion to clarify the role of class counsel in a separate order. Remaining pending 

before us is the Secretary's motion to suspend secretarial action pursuant to our Rule of Practice and Procedure 8. We 

will also address that motion in separate orders. 

2 Skaar v. Wilkie, 32 Vet.App. 156, 200 (2019) (en banc) (quoting Monk v. Shulkin, No. 15-1280, 2018 U.S. App. Vet. 

Claims LEXIS 61 (Jan. 23, 2018) (en banc) (nonprecedential per curiam order)). 
2 

certified. Still, we are not without guideposts. After all, our colleagues on the Federal district courts 

have managed class actions for decades under the Federal Rules of Civil Procedure, including 

using special masters.3

 Nevertheless, because the terrain over which we travel is unexplored, we 

tread with some caution. 

Second, we know that the Federal Circuit has been clear that this Court has the authority 

to adjudicate claims as class actions.4

 Thereafter, this Court has recognized that we will entertain 

class actions in appropriate situations in the context of both petitions filed under the All Writs Act 

as well as in direct appeals of Board of Veterans' Appeals decisions.5

 We recently adopted rules 

of procedure for that purpose.6 And, of course, we certified a class in this matter.7 The point here 

is that we have crossed the Rubicon in terms of whether there will be class actions at our Court. 

There are and will be. 

Third, though the Federal Circuit made clear that we have the authority to certify classes, 

it did not – nor could it – transform the Court from an appellate tribunal into a district court. As a 

practical matter this means the Court is confronted with the question of how we, as an appellate 

court, can effectively manage a class action without the flexibility a district court enjoys. Here, the 

issue is how the Court can ensure that a class action judgment is being implemented when there 

are disputes about that issue. Assessing compliance disputes through a three-judge panel following 

standard appellate procedures is, to put it mildly, a cumbersome process. So, we will need to be 

creative in how we effectuate the authority the Federal Circuit held we have and that we have 

adopted. 

Fourth, we are confident that we have the authority to appoint a special master to assist us 

in managing class actions in appropriate situations. To begin with, our Rule of Practice and 

Procedure 23(d)(1) provides that "[i]n managing the litigation of a class action proceeding under 

this Rule, the Court may issue all orders that it deems necessary and proper."8

 So, we have built 

into our Rule 23 tools to address the difficulties we may face as an appellant body conducting class 

action proceedings. Moreover, our decision concerning the power to appoint special masters is 

consistent with the Federal district court practice, well settled even before the adoption of the 

current version of Federal Rule of Civil Procedure 53, that explicitly provides for the appointment 

of special masters.9

 We caution that recognizing that we have the power to appoint a special master 

3 See generally FED. R. CIV. P. 53 (providing for appointments of special masters); see also MANUAL FOR COMPLEX 

LITIGATION, FOURTH ED., § 21.661, at 332 (noting use of special masters in class actions to, among other things, 

"oversee[] implementation of an injunction").

4 Monk v. Shulkin, 855 F.3d 1312, 1321-22 (Fed. Cir. 2017). 

5 See Skaar, 32 Vet.App. at 177-78 (appeal context); Monk v. Wilkie, 30 Vet.App. 167, 170-71 (2018) (en banc) 

(petition context). 

6 See U.S. VET. APP. MISC. ORD. 12-20 (Nov. 10, 2020). 

7 Wolfe v. Wilkie, 32 Vet.App. 1, 41 (2019). 

8

 U.S. VET. APP. R. 23(d)(1).

9 See, e.g., Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 72 F.3d 857, 864 (Fed. Cir. 1995) ("The 

federal courts have certain inherent powers to appoint persons unconnected with the court to aid judges in the 

performance of certain duties."), vacated on other grounds, 117 F.3d 1385 (Fed. Cir. 1997); United States v. Yonkers 

Bd. of Educ., 29 F.3d 40, 44 (2d Cir. 1994) ("The power of the federal courts to appoint special masters to monitor 
3 

does not mean that special masters will, or should, be appointed in all cases. There should be a 

reason specific to a given proceeding that justifies any such appointment.10

And, finally, we are fully aware that the Secretary has appealed our decision in this matter 

to the Federal Circuit. That appeal has important implications for any action that we take because 

filing an appeal is "an event of jurisdictional significance."11 Once an appeal has been taken, we 

are without authority to change the rights and obligations of the parties under the order before a 

higher court.12 So, we will take care to ensure that in this matter we do no more than ensure 

compliance with our orders and that we do not alter those orders. The fact is, this balancing act 

merely serves as another example of how our newly minted class action authority poses difficult 

issues about many matters, including those related to jurisdiction.13

II. COURSE OF PROCEEDINGS

 This action has a long history, beginning on October 30, 2018, when the petitioners filed 

their original request for the issuance of a writ of mandamus and certification of a class action. We 

will not recount every twist and turn of the proceedings. Instead, to set the stage for explaining the 

appointment of a special master, we focus on the principal events and decisions. 

 After extensive pre-argument briefing, oral argument, and supplemental postargument 

briefing, on September 9, 2019, the Court issued a precedential order concerning the petition. As 

germane to the Motion before us, the Court's order provided as follows:14

x We certified the following class for purposes of the order: "All claimants whose 

claims for reimbursement of emergency medical expenses incurred at non-VA 

facilities VA has already denied or will deny, in whole or in part, on the ground that 

the expenses are part of the deductible or coinsurance payments for which the 

veteran was responsible." 

x We appointed Mark B. Blocker, Esq., of Sidley Austin LLP, and Barton F. 

Stichman, Esq., of the National Veterans Legal Services Program, as class counsel. 

x We invalidated 38 C.F.R. § 17.1005(a)(5) because we determined that it was 

contrary to 38 U.S.C. § 1725. 

x We determined that the Secretary's decisions made under § 17.1005(a)(5), to the 

extent they denied reimbursement to class members for medical expenses deemed 

compliance with their remedial orders is well established."). 

10 Accord FED. R. CIV. P. 53(a). 

11 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). 

12 See Am. Trucking Ass'ns Inc. v. Frisco, 358 U.S. 133, 145-46 (1958). 

13 See, e.g., Monk v. Wilkie, 32 Vet.App. 87, 93-97 (2019) (en banc) (discussing this Court's jurisdiction to address the 

merits of a dispute while an appeal concerning our decision to certify a class is pending at the Federal Circuit). 

14 All the cited provisions of our September 2019 order appear at Wolfe, 32 Vet.App. at 41. 
4 

deductibles or coinsurance, in whole or in part, were invalid. Accordingly, we 

ordered the Secretary to readjudicate those reimbursement claims under section 

1725's proper interpretation. 

x And we directed the Secretary to cease sending letters to claimants containing 

incorrect information about reimbursement claims and provided that within 45 days 

of the date of the order "the Secretary prepare and submit to the Court for approval 

a plan for providing notice to veterans affected by the provision of notice that 

contained an incorrect statement of the law concerning reimbursement of costs for 

non-VA emergency care." 

 A flurry of activity followed our September 2019 order. In October 2019 the Secretary 

filed an opposed motion for entry of judgment or, in the alternative, certification for interlocutory 

review.15 We heard oral argument on that motion (among other matters) in January 2020. To 

narrow the issues between the parties we directed the parties to meet and confer, and we deferred 

decision on the Secretary's motion in the interim. The parties were able to resolve several issues, 

but disputes between them remained. In particular, a dispute arose concerning the Secretary's 

compliance with the September 2019 order. In this regard, in March 2020, petitioners filed an 

opposed motion to enforce the September 2019 order. 

 In an April 2020 order, we resolved both the Secretary's motion concerning entry of 

judgment as well as petitioners' motion to enforce the September 2019 order.16 With respect to the 

Secretary's motion concerning entry of judgment, we directed that he take certain actions to begin 

notifying class members of readjudication, and we provided that we would enter judgment 

promptly after class members had been notified.17 Accordingly, we prospectively denied the 

motion as moot.18 

 We granted in part petitioners' motion concerning enforcement of the September 2019 

order. In that regard, we made the following two orders: 

x We directed that within 45 days of the date on which the Secretary informed the 

Court that he began his notice obligations, the Secretary begin the readjudications 

required under the terms of the September 9, 2019, order;19 and 

x We ordered that every 45 days after the Secretary began readjudications, he serve 

a status report on class counsel providing an update on the readjudication of class 

15 At the same time, the Secretary also filed a motion to stay the precedential effect of our September 2019 order. 

Following additional oral argument, we denied that motion. See Order, Wolfe v. Wilkie, U.S Vet. App. No. 18-6091 

(Jan. 24, 2020). 

16 See Order, Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091 (Apr. 6, 2020). 

17 Id. at 4. 

18 Id. 

19 Id. 
5 

members' claims using certain of the categories of claimants the parties had 

identified in a joint submission to the Court filed on March 9, 2020.20

 The Secretary complied with the notice requirements of our April 2020 order, and the Court 

entered judgment on April 15, 2020. On June 11, 2020, the Secretary filed his appeal to the Federal 

Circuit. That appeal remains pending. 

 While at the time the Court was not aware of the activities taking place in the wake of our 

entry of judgment, the Secretary proceeded with readjudications and provided class counsel with 

the status reports we had directed. But the process was not a smooth one, or at least not one in 

which the parties could agree that matters were proceeding appropriately or well. We learned of 

that reality with the filing of the October 2020 Motion before us today, the Motion concerning the 

appointment of a special master. It suffices to say that class counsel believe that the Secretary is 

acting too slowly in terms of readjudications and has provided confusing and inaccurate status 

reports, hampering counsels' ability to ensure that VA is complying with the terms of the 

September 2019 order. On the other hand, the Secretary contends that he is working diligently to 

comply with the Court's orders and has provided sufficient information in the status updates 

(including correcting errors identified in those reports) to allow class counsel to monitor 

compliance with the September 2019 order. 

III. APPOINTMENT OF A SPECIAL MASTER IS 

WARRANTED, AT LEAST TO A LIMITED DEGREE.

 We conclude that appointment of a special master is warranted and will, therefore, grant 

petitioners' Motion to the extent set out below. As we will explain, and cognizant of the novelty of 

the situation we face, the appointment is one with limited responsibilities, at least at this point. We 

have two principal reasons for concluding that appointment of a special master is appropriate here. 

 First, we are in a difficult position in terms of assessing the parties' competing narratives 

concerning VA's compliance with our orders. The briefs present different, often starkly different, 

takes on the pace of readjudications as well as on the accuracy and utility of the Secretary's status 

reports. We attempted to address these issues by designating a member of the panel to hold a status 

conference with counsel and, after that, we directed the parties to work to narrow their dispute. 

Through no fault of any party, that process did not succeed either in result or in clarifying the state 

of affairs. We conclude that an independent assessment of the factual underpinnings of the parties' 

dispute would assist the Court greatly. 

Second, and somewhat relatedly, we believe it is possible that at least a portion of the 

difficulties between the parties flows from ineffective communication. We ascribe no ill will to 

counsel for the class or to the Secretary. But our review of the various documents submitted in 

regard to the motion often shows a disconnect concerning matters ranging from terminology to the 

reason for various requests or responses. Take the 45-day reports for example. The back-and-forth 

concerning the reports is extensive. Indeed, at times it appears as if the reports – which are merely 

tools to allow class counsel to assess VA's compliance with the Court's order – have taken on a 

20 Id. 
6 

central role in the parties' disputes, as if they were ends instead of means. It may be that the state 

of affairs between the parties can't be helped. Yet it seems equally possible that these disputes 

reflect, at least in part, a failure of effective communication. 

In sum, we have concluded that a special master would assist in two principal areas. First, 

a special master would assist in providing the Court with information – that is, the special master 

would provide an independent assessment of matters related to compliance with the Court's order. 

Second, a special master would serve as a facilitator of sorts. It may be that counsel simply can't 

work together more effectively than they have. Sometimes that happens, even when everyone acts 

in good faith. But it may be that communication can be improved through the presence of an 

independent third party. And if that is the case, it also may be that some of the issues between the 

parties can be resolved without formal judicial intervention. 

 Our assessment that a special master would serve both information-gathering and 

facilitation roles informs our description of the special master's duties. In performing his duties in 

this matter, the special master should be guided by these principles and procedural guidelines: 

x The special master is not empowered to alter (by expanding, contracting, or 

changing in any way) the terms of our orders. His duties are to provide the Court 

with information and to assist the parties in effectively communicating about VA's 

compliance with those orders so that class counsel can perform their responsibilities 

of monitoring compliance without inappropriately treading on how VA manages 

its operations. 

x The special master is empowered to communicate (in writing, in person, or virtually 

as the special master determines) with the parties jointly as well as with either party 

individually as the special master deems appropriate. If the special master intends 

to or does communicate with either party on an ex parte basis, the special master 

shall provide notice of such communication to the other party either before the 

communication or promptly afterward. 

x No later than 120 days after the appointment of the special master is effective under 

the terms of this order, the special master shall file a report and recommendation 

with the Court concerning his activities. We leave the form of the report and 

recommendation largely to the discretion of the special master. However, the report 

and recommendation should include (1) a summary of the special master's actions 

during the 120-day period; (2) his assessment of whether noncompliance (or 

undercompliance or delayed compliance) with our orders is at issue, specifying the 

nature of any issue he has identified; (3) whether he concludes that VA is providing 

sufficient information to class counsel to allow them to effectively monitor VA's 

compliance with our orders; and (4) whether he recommends that the Court take 

any further action, including reappointment of the special master, specifying the 

nature of such recommended action.21

21 We again note that any action we might take is potentially constrained by the pendency of the appeal at the Federal 

Circuit. While the special master may take this fact into account in making recommendations, we will ultimately 

assess whether we can take any given action. We recognize this point may be obvious, but we make it nonetheless to 
7 

x The special master may, but is not required to, file interim reports to the Court 

during the 120-day period if he deems it useful to do so. 

x Before submitting to the Court the final report and recommendation, or any interim 

reports, the special master shall allow the parties a reasonable time to review such 

submissions and provide comments to the special master. The parties' comments 

on these submissions need not be filed on the docket in this matter, but the special 

master shall retain a record of such comments. 

 We stress that we are not appointing the special master as some sort of roving 

commissioner of justice. Doing so would be inappropriate for many reasons, ranging from the 

constitutional separation of powers to our limited ability to act while this matter is on appeal at the 

Federal Circuit. So, no one should read this order to do so. The special master's responsibilities set 

out above are designed to provide the Court with information and to assist the parties in 

communication. 

IV. APPOINTMENT OF THE SPECIAL MASTER

 We will appoint the Honorable Thomas B. Griffith as the special master in this matter. 

Judge Griffith served as a judge on the United States Court of Appeals for the District of Columbia 

Circuit from 2005 to 2020. He joined the firm of Hunton Andrews Kurth LLP as a special counsel 

in February 2021, focusing his practice on Federal appellate, administrative, and investigative 

practices. Judge Griffith's biography and conflicts disclosure are attached to this order. 

 As a general matter, the parties should be provided notice of a court's intention to appoint 

a special master.22 Here, the general issue of the appointment of a special master was joined 

because petitioners filed their Motion requesting that the Court appoint a special master and the 

Secretary had the opportunity to and did object. However, we believe the parties should also have 

the opportunity to object to the specific person we appoint. Therefore, we will allow a party to file 

an objection to the appointment of Thomas B. Griffith as special master. 

 Additionally, we note that the Federal Rules of Civil Procedure provide that the standards 

for judicial disqualification under 28 U.S.C. § 455 should generally apply to special masters district 

courts appoint.23 Though we are not bound by the Rules of Civil Procedure,24 we conclude that 

applying the judicial disqualification provisions under section 455 to special masters is appropriate 

as a means to ensure the actual and perceived fairness in this process. So, we will follow Rule 53 

of the Federal Rules of Civil Procedure and apply the disqualification standards under section 455 

underscore that we are fully aware of the potential jurisdictional complications in this matter and our need to attend 

to the limits of our jurisdiction given the procedural context in which we operate. 

22 See FED. R. CIV. P. 53(b)(1). 

23 See FED. R. CIV. P. 53(a)(2), (b)(3)(A). 

24 See FED. R. CIV. P. 1 (specifying that the Rules apply to proceedings before district courts). 
8 

to the special master we will appoint. And we will also follow Rule 53's requirement that the 

special master file an affidavit attesting that recusal under section 455 is not warranted.25

 Finally, we make clear that neither party will bear the costs associated with the special 

master's appointment.26 The Court has budgeted funds for the appointment of special masters. 

Accordingly, the Court will make the appropriate financial arrangements directly with the special 

master. 

Upon consideration of the foregoing, it is 

ORDERED that petitioners' Motion for Appointment of a Special Master to Enforce the 

Court's Judgment is granted to the extent set forth in this order. It is further 

ORDERED that within 5 days of the date of this order the special master file with the Court 

an affidavit stating that he is not aware of any reason that would require recusal under 28 U.S.C. 

§ 455 if the special master were a judicial officer. It is further 

ORDERED that any objection to the identity of the special master must be filed with the 

Court no later than 10 days after the date of this order. Any such objection shall set forth the 

grounds for the objection with any supporting authority or evidence and shall not exceed 10 pages. 

It is further 

ORDERED that the Honorable Thomas B. Griffith is appointed as a special master to carry 

out the duties set forth in this order. This appointment shall be effective on the later of the date (1) 

when the time for the parties to object to the appointment has expired if no objection is filed or (2) 

when the Court rules on any objection, assuming the objection is overruled. And it is further 

ORDERED that the special master file the report and recommendation described above 

within 120 days of the date on which the appointment becomes effective under the terms of this 

order. The special master may also file interim reports within this period to the extent deemed 

necessary. 

 

DATED: March 24, 2021 

FALVEY, Judge, concurring: I join the panel's well-crafted order in all aspects and write 

separately only to further emphasize its limited nature. 

First, because judgment has entered and an appeal has been filed, the Court lacks 

jurisdiction to revise the parties' obligations. By this order, we do not seek to actively manage this 

class action or alter the parties' rights and obligations. As we have said, we "likely lack jurisdiction 

to actively manage this class action" once we enter judgment and the Secretary appeals.27 Thus, 

25 See FED. R. CIV. P. 53(b)(3)(A). 

26 See FED. R. CIV. P. 53(a)(3) (noting that district courts should consider the costs imposed on parties as a result of 

appointing a special master). 

27 Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091, unpublished order at 3 (Apr. 6, 2020). 
9 

we properly "take care to ensure that we do no more than ensure compliance with our orders in 

this matter and not alter those orders."28 

Second, our jurisdictional limitations necessarily narrow the scope of the special master's 

authority. Petitioners request appointment of a special master not just to report to the Court but 

also to evaluate VA's readjudication procedures.29 They argue that "[m]onitoring of this kind is 

especially appropriate in cases like this, where the Petitioners are requesting (and the Court has 

ordered) systemic reform of agency practices and where there are repeated and prolonged failures 

to comply with Court [o]rders."30 But we ordered no "systemic reform of agency practices," nor 

have we found "repeated and prolonged failures to comply with Court [o]rders." The petition 

challenged the validity of 38 C.F.R. § 17.1005(a)(5) and, having found the regulation invalid, our 

orders required VA to readjudicate class members' claims and reimburse veterans for coinsurance 

and deductibles, 31 and provide class counsel with periodic status reports. 32 Thus, we do not 

authorize a special master with the broad authority sought by petitioners. Instead, we authorize 

one with limited responsibilities tailored to enforcement of our orders. 

Finally, although our appointment of a special master here is driven by the parties' 

"competing narratives concerning VA's compliance with the terms of our order" and perhaps the 

parties' "ineffective communications,"33 the parties' good faith inability to work through their 

dispute seems to also reflect a fundamental disagreement over what the Court ordered. 

Having invalidated § 17.1005(a)(5) and any decisions made under it denying 

reimbursement to class members for deductibles and coinsurance, we ordered the Secretary to 

readjudicate those reimbursement claims under our interpretation of 38 U.S.C. § 1725.34 We also 

ordered the Secretary to cease sending letters to claimants containing incorrect information about 

reimbursement claims.35 We later ordered the Secretary to begin the readjudications and to submit 

periodic status reports to the class counsel.36 

Subsequently, VA revised its adjudication process and began implementing the Court's 

order for VA to reimburse veterans for coinsurance and deductibles, and VA began actively 

readjudicating class members' claims.37 VA has also submitted the required status reports to class 

counsel despite the challenges involved.38 As the Secretary points out, "[p]etitioners do not assert 

28 Id. 

29 Wolfe, U.S. Vet. App. No. 18-6091, Pet., Motion at 9-10 (Oct. 27, 2020). 

30 Id. at 8. 

31 Wolfe v. Wilkie, 32 Vet.App. 1, 40-41 (2019). 

32 Wolfe, U.S. Vet. App. No. 18-6091, Order at 4 (Apr. 6, 2020). 

33 Ante at 5. 

34 Wolfe, 32 Vet.App. at 41. 

35 Id. 

36 Wolfe, U.S. Vet. App. No. 18-6091, Order at 4 (Apr. 6, 2020). 

37 Sec'y Brief in Opposition to this Motion at 2-3, 4, 14. 

38 Id. at 6. 
10 

that VA is either refusing to comply with the Court's order or refusing to readjudicate claims. 

Rather, [p]etitioners' complaints pertain to the accuracy of status reports that the Court ordered the 

Secretary to provide to class counsel every 45 days after beginning readjudications."39 Although 

VA acknowledges some errors in these reports, VA has corrected those errors when identified, 

sought to improve upon the report with each iteration, and pledged to continue to do so with or 

without the appointment of a special master.40 Thus, there seems to be little here to justify 

appointing a special master to enforce our judgment. 

To the extent, however, that a special master with limited responsibilities can facilitate 

resolution of this matter, I concur. 

39 Id. at 4-5. 

40 Id. at 11. 
Hunton Andrews Kurth LLP | 1 

Biographies 

Thomas B. Griffith 

Special Counsel

tgriffith@HuntonAK.com 

Washington, DC 

+1 202 955 1500 

SERVICES 

Practices 

Litigation 

Issues and Appeals 

White Collar Defense and 

Internal Investigations 

Congressional 

Investigations 

 

EDUCATION 

JD, University of Virginia 

School of Law, 1985 

BA, Brigham Young 

University, summa cum 

laude, 1978 

 

BAR ADMISSIONS 

District of Columbia 

 

Judge Thomas B. Griffith, special counsel to the firm, recently 

served as a federal judge on the United States Court of 

Appeals for the District of Columbia Circuit. 

Judge Griffith served on the DC Circuit from 2005–2020. The Washington Post has 

described him as “widely respected by people in both parties” and a “sober lawyer 

with an open mind.” Judge Griffith joined the firm in 2021, focusing his practice on 

appellate litigation, congressional and internal investigations, and strategic 

counseling. 

Judge Griffith began his legal career in private practice before serving for four years 

as Senate Legal Counsel, the nonpartisan chief legal officer of the United States 

Senate (1995–1999). In this capacity, he represented the interests of the Senate in 

litigation as well as advising Senate leadership and committees on investigations. 

After a brief return to private practice, Judge Griffith served for five years as 

General Counsel of Brigham Young University, the largest religious university in the 

country. 

As a member of the DC Circuit, Judge Griffith was the author of approximately 200 

opinions on a range of matters including administrative, environmental and 

energy law, and congressional investigations. He was appointed by the Chief 

Justice of the United States to serve on the Judicial Conference’s Committee on the 

Judicial Branch, which involves the judiciary’s relationship to the Executive Branch 

and Congress, and the Code of Conduct Committee, which sets the ethical 

standards that govern the federal judiciary. Judge Griffith is a Lecturer on Law at 

Harvard Law School, and has held the same faculty position at the law schools at 

Stanford and Brigham Young Universities. He has long been active in rule of law 

projects in Eastern Europe, Eurasia, Asia and domestically. 

Memberships 

• Member, International Advisory Board of the CEELI Institute in Prague 

• Member, Advisory Board of the Neal A. Maxwell Institute for Religious 

Scholarship at Brigham Young University 

• Senior Advisor, National Institute for Civil Discourse 

• Member, Advisory Board of the Center for Constitutional Studies at Utah Valley 
Hunton Andrews Kurth LLP | 2 

University 

• Member, the Secretary of Education’s Commission on Opportunity in Athletics 

(the Title IX Commission) (2002–2003) 

• General Counsel, Congressional Advisory Commission on Electronic Commerce 

(1999–2000) 

Awards & Recognition 

• Distinguished Service Award, Brigham Young University (2018) 

• Recipient of the David W. Peck Sr. Medal for Eminence in the Law from Wabash 

College (2014) 

Events 

• Judge, Virtual Mock Trial, Shakespeare Theatre Company, March 11, 2021 

• Speaker, Retired D.C. Circuit Judge Thomas B. Griffith Presents Civic Charity: A 

Key to Legal Professionalism, February 25, 2021 

Publications 

• Author, How judicial activism on the right and left is threatening the 

Constitution, Deseret Magazine, February 1, 2021 

• Author, The Degradation of Civic Charity, 134 Harv. L. Rev. F. 119, 2020 

• Author, Civic Charity and the Constitution, 43 Harv. J.L. & Pub. Pol’y 633, 2020 

• Author, Amy Coney Barrett’s Religion Won’t Dictate Her Rulings, Bloomberg 

Opinion, October 12, 2020 

• Author, Was Bork Right About Judges?, 34 Harv. J.L. & Pub. Pol’y 157, 159–62, 

2011 
ATLANTA AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON LONDON 

LOS ANGELES MIAMI NEW YORK NORFOLK RICHMOND SAN FRANCISCO THE WOODLANDS TOKYO TYSONS WASHINGTON, DC 

www.HuntonAK.com 

HUNTON ANDREWS KURTH LLP 

2200 PENNSYLVANIA AVENUE, NW 

WASHINGTON, D.C. 20037-1701 

TEL 202 • 955 • 1500 

FAX 202 • 778 • 2201 

THOMAS B. GRIFFITH 

DIRECT DIAL: 202 • 419 • 2064 

EMAIL: tgriffith@HuntonAK.com 

March 15, 2021 FILE NO: TBD 

Confidential 

Via E-Mail 

The Honorable Joseph L. Falvey, Judge 

United States Court of Appeals for Veterans Claims

625 Indiana Avenue, NW 

Suite 900 

Washington, D.C. 20004-2950 

JFalvey@uscourts.cavc.gov

Re: Disclosures In Connection with Special Master Appointment 

Dear Judge Falvey: 

At your request, please find below my disclosures related to client representations that Hunton 

Andrews Kurth LLP (“Hunton Andrews Kurth” or the “firm”) has identified in connection 

with my potential appointment as a Special Master in the case styled Amanda J. Wolfe and 

Peter Boerschinger, Individually and on Behalf of Others Similarly Situated, Petitioners, v. 

Denis McDonough, Secretary of Veterans Affairs, Respondent, in the United States Court of 

Appeals for Veterans Claims, Case No. 18-6091( the “Wolfe litigation”). 

• Neither Judge Griffith individually nor the firm has a client relationship nor 

any work adverse to the named plaintiffs, Amanda Wolfe and Peter Boerschinger. If 

Judge Griffith is appointed as special master, the firm will decline any representations 

of the named plaintiffs for as long as Judge Griffith serves as special master. 

• Neither Judge Griffith individually nor the firm has undertaken any work that 

is related to the Wolfe litigation (that is, “claims for reimbursement of emergency 

medical expenses incurred at non-VA facilities” that the “VA has already denied or 

will deny, in whole or in part, on the ground that the expenses are part of the 

deductible or coinsurance payments for which the veteran was responsible.”). If Judge 

Griffith is appointed as special master, the firm will decline any representations related 

to the Wolfe litigation for as long as Judge Griffith serves as special master. 
March 15, 2021 

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• The firm is not aware of any client relationships with any members of the 

plaintiff class in the Wolfe litigation. However, absent a specific list of names of all 

those in the plaintiff class, the firm cannot rule out the possibility of a client 

relationship with a member of the plaintiff class. As stated above, if there is such a 

relationship, the relationship does not involve work related to the Wolfe litigation. 

• Neither Judge Griffith individually nor the firm has a client relationship with 

the U.S. Department of Veterans Affairs (VA) or with Denis McDonough, Secretary 

of the VA. If Judge Griffith is appointed as special master, the firm will decline any 

representations of the VA for as long as Judge Griffith serves as special master. 

• The firm has numerous cases in which it is representing veterans adverse to the 

VA unrelated to the Wolfe litigation. Judge Griffith has not participated and is not 

participating in any of those representations. If Judge Griffith is appointed as special 

master, the firm will screen Judge Griffith and anyone assigned to work with him as 

special master from such representations. 

• The firm represents plaintiff class counsel National Veterans Legal Services 

Program (NVLSP) in National Veterans Legal Services Program v. United States 

Department of Defense, et al., in the United States Court of Appeals (4th Cir.), Case 

No. 20-1425, which is unrelated to the Wolfe litigation. The firm has taken no role for 

the NVLSP relative to the Wolfe litigation. The firm has represented NVLSP in the 

past on matters unrelated to the Wolfe litigation. If Judge Griffith is appointed as 

special master and for so long as he holds that appointment, the firm will decline any 

future representation of the NVLSP in any matter related to the Wolfe litigation and 

screen Judge Griffith and anyone assigned to work with him as special master from 

any representation of the NVLSP. 

• In addition to the client relationship with NVLSP, the firm has a long history 

of handling cases for veterans because of referrals from the NVLSP. As a result of 

those referrals, the firm has handled over 200 cases for veterans involving claims such 

as: 

x Medical benefits denials 

x Combat-related Special Compensation (CRSC) 

x Disability designations 

x Service oriented disability benefits 
March 15, 2021 

Page 3 

x Medical discharge designations 

x Medical retirement benefits

x Education benefits 

x Correction of military records 

x Discharge upgrades 

As noted above, none of these has involved claims related to non-VA medical 

treatment at issue in the Wolfe litigation. If Judge Griffith is appointed as special 

master and for so long as he holds that appointment, the firm will screen him and 

anyone assigned to work with him as special master from the cases it undertakes as a 

result of a referral from the NVLSP. 

• The firm has in the past had lawyers who have served as members of the 

NVLSP Advisory Council, though none currently. If Judge Griffith is appointed as 

special master and for so long as he holds that appointment, the firm will decline to 

approve service by firm lawyers on the NVLSP Advisory Council. 

• The firm has no client relationship with Sidley & Austin nor is the firm 

currently representing clients adverse to Sidley & Austin itself. The firm has now and 

will continue to have representations in which Sidley & Austin is serving as opposing 

counsel for its own clients. 

Sincerely, 

Thomas B. Griffith