I 

113TH CONGRESS 

2D SESSION H. R. 5088 

To amend title 38, United States Code, to establish procedures for class 

actions at the Court of Appeals for Veterans Claims, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 11, 2014 

Mr. MURPHY of Florida (for himself and Mr. JOLLY) introduced the following 

bill; which was referred to the Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to establish procedures for class actions at the Court of Appeals for Veterans Claims, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Responsive and Effi5 cient Appeals Courts for Heroes Act of 2014’’. 

6 SEC. 2. CLASS ACTIONS BEFORE COURT OF APPEALS FOR 

7 VETERANS CLAIMS. 

8 (a) AUTHORITY FOR COURT OF APPEALS FOR VET9 ERANS CLAIMS TO HEAR CLASS ACTIONS.—Subchapter 


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1 II of chapter 72 of title 38, United States Code, is amend2 ed by adding at the end the following new section: 

3 ‘‘§ 7270. Class actions 

4 ‘‘(a) IN GENERAL.—The Court, acting as a panel or 

5 en banc, may hear class action appeals in accordance with 

6 this section. 

7 ‘‘(b) PREREQUISITES.—One or more appellants may 

8 bring an action under this chapter as the representative 

9 party of a class on behalf of all members of the class only 

10 if the following criteria are met: 

11 ‘‘(1) There is at least one question of law or 

12 fact common to the class. 

13 ‘‘(2) The class is likely to consist of at least 50 

14 members. 

15 ‘‘(3) The resolution of the common questions of 

16 law or fact is likely to have a material effect on the 

17 claims of the members of the class (including with 

18 respect to the process by which such claims are ad19 judicated). 

20 ‘‘(4) The representative party will fairly and 

21 adequately protect the interests of the class. 

22 ‘‘(c) CERTIFICATION PROCEDURE.—(1) Not later 

23 than 60 days after the date on which an appellant has 

24 filed an appeal, the appellant may file a motion with the 

25 Court to certify the appeal as a class action with respect 


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1 to an issue that the appellant intends to raise on appeal. 

2 Such motion shall address the prerequisites under sub3 section (b), including by defining the class described in 

4 paragraph (2) of such subsection. The Court may waive 

5 such 60-day period for good cause shown, including with 

6 respect to instances where the appellant determined the 

7 appropriateness of the class action procedure as a result 

8 of the pleadings filed in the appeal after the filling of the 

9 notice of appeal. 

10 ‘‘(2)(A) Upon the filing of a motion under paragraph 

11 (1), the Secretary shall— 

12 ‘‘(i) make reasonable efforts to determine the 

13 approximate number of individuals with pending 

14 claims for benefits for whom class certification is 

15 sought under such motion; and 

16 ‘‘(ii) file a response to such motion that— 

17 ‘‘(I) includes the approximate number of 

18 individuals determined under subparagraph (A), 

19 including the efforts made by the Secretary to 

20 carry out such subparagraph (A); and 

21 ‘‘(II) addresses the prerequisites under 

22 subsection (b). 

23 ‘‘(B) The appellant may file a response to the re24 sponse of the Secretary under subparagraph (A). 


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1 ‘‘(3) At an early practicable time after an appellant 

2 has filed a motion under paragraph (1) to certify the ap3 peal as a class action and the Secretary has filed a re4 sponse under paragraph (2)(A), the Court, acting as a 

5 panel or en banc, shall determine by order whether to 

6 grant class certification with respect to an issue consid7 ered under the appeal and allow the appellant to act as 

8 the representative party of the class. Such order shall— 

9 ‘‘(A) address the prerequisites under subsection 

10 (b); and 

11 ‘‘(B) if such class certification is granted under 

12 the order— 

13 ‘‘(i) define, with specificity, the class and 

14 issue for which the class is certified; and 

15 ‘‘(ii) appoint counsel for the class under 

16 subsection (e). 

17 ‘‘(4) The Court, acting as a panel or en banc, may 

18 alter or amend an order issued under this section before 

19 final judgment as justice so requires. 

20 ‘‘(5) An order granting class action under paragraph 

21 (3) shall direct the Secretary to notify members of the 

22 class who are reasonably identifiable in a form the Court 

23 determines practicable. Such notice shall state clearly, 

24 concisely, and in plain language— 

25 ‘‘(A) a definition of the class certified; 


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1 ‘‘(B) a statement of the common questions of 

2 law or fact that will be subject to resolution by the 

3 Court on a class basis; 

4 ‘‘(C) that a member of the class may enter an 

5 appearance through an attorney or nonattorney 

6 practitioner if the member so desires but such action 

7 is not necessary; 

8 ‘‘(D) any other matters the Court determines 

9 appropriate. 

10 ‘‘(6) In determining the class under paragraph (3), 

11 the Court may only include individuals who have, as of 

12 the date of the entry of judgment of the Court on the 

13 class action, filed a claim and such claim has not been 

14 finally resolved, including any appeals from a denial of 

15 such claim. 

16 ‘‘(7) Any judgment in a class action (whether favor17 able or unfavorable to the class) shall include a description 

18 of the issue decided, the resolution of the issue, and the 

19 individual to whom notice of the certification of the action 

20 was directed. 

21 ‘‘(d) CONDUCT OF APPEAL.—(1) In hearing a class 

22 action, the Court may issue such orders as are necessary 

23 for the efficient and fair resolution of the action, including 

24 with respect to— 


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1 ‘‘(A) the determination of the manner in which 

2 proceedings will be conducted in order to advance 

3 the resolution of the common questions of law or 

4 fact; 

5 ‘‘(B) whether additional notices should be made 

6 to members of the class concerning the status of the 

7 appeal or any other matter the Court determines ap8 propriate; 

9 ‘‘(C) whether the individual claims of members 

10 of the class should be stayed pursuant to paragraph 

11 (2) or any other orders the Court determines appro12 priate with respect to the maintenance of such indi13 viduals claims; and 

14 ‘‘(D) any other matter the Court determines 

15 appropriate. 

16 ‘‘(2) The Court may stay, in whole or in part, the 

17 individual claims of members of the class, including on a 

18 case-by-case basis, during the period in which the Court 

19 is considering the class action. In determining whether to 

20 issue such a stay, the Court shall consider— 

21 ‘‘(A) the views of the parties; 

22 ‘‘(B) whether issuance of such a stay would be 

23 likely to decrease the time that members of the 

24 class, the representatives of the class, and the SecVerDate Mar 15 2010 03:37 Jul 16, 2014 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5088.IH H5088

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1 retary would have to expend on the individual claims 

2 subject to the stay; and 

3 ‘‘(C) whether such a stay is in the interests of 

4 justice in order to preserve the right of the members 

5 of the class to benefit from a favorable resolution of 

6 the common questions of law or fact by eliminating 

7 the possibility that individual claims would be finally 

8 denied during the pendency of the class action. 

9 ‘‘(e) CLASS COUNSEL.—(1) If the Court certifies a 

10 class action, the Court shall appoint counsel to represent 

11 the members of the class. Regardless of the number of 

12 applicants to serve as such a class counsel, in appointing 

13 such class counsel, the Court shall consider the following 

14 matters: 

15 ‘‘(A) The work counsel has done in identifying 

16 and preparing for adjudication of the common ques17 tions of law or fact of the class action. 

18 ‘‘(B) The experience of counsel in and knowl19 edge of the law concerning benefits administered 

20 under this title. 

21 ‘‘(C) The general experience of counsel in ap22 pellate litigation. 

23 ‘‘(D) The record of the counsel for profes24 sionalism. 


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1 ‘‘(E) The resources that counsel will commit to 

2 representing the class. 

3 ‘‘(F) If an attorney, whether the counsel is a 

4 member of a bar of a State in good standing. 

5 ‘‘(G) Such other factors pertinent to the ability 

6 of counsel to fairly and adequately represent the in7 terests of the class. 

8 ‘‘(2) The Court may appoint an interim class counsel 

9 if the Court determines such appointment necessary to 

10 protect the interests of the class during the period pre11 ceding an appointment under paragraph (1). 

12 ‘‘(3) Class counsel appointed under paragraph (1) or 

13 (2), and co-counsel appointed under paragraph (4), shall 

14 fairly and adequately represent the interests of the class 

15 at all times. 

16 ‘‘(4) If the Court determines that there is more than 

17 one applicant who is qualified under paragraph (1) to 

18 serve as class counsel, the Court shall appoint the counsel 

19 whom the Court determines is best able to represent the 

20 interests of the class. Counsel appointed under this sub21 section may be counsel to an organization permitted to 

22 intervene under subsection (f) if such counsel meets the 

23 requirements of paragraph (1). 

24 ‘‘(f) INTERVENTION.—An organization named in or 

25 approved under section 5902 of this title may seek leave 


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1 to intervene in a class action appeal. Such organization 

2 may seek to intervene during the period beginning on the 

3 date on which the motion is filed under paragraph (1) of 

4 subsection (b) and ending on the date that is 60 days after 

5 the date on which the Court grants class certification 

6 under paragraph (3) of such section. The Court shall 

7 grant intervention if the organization has an interest in 

8 the common questions of law or fact in the class action 

9 but may limit the intervention to specific matters deter10 mined appropriate by the Court. The Court may issue 

11 such other orders concerning the conduct of an intervenor 

12 as the Court determines necessary for the fair and effi13 cient resolution of the class action. 

14 ‘‘(g) SETTLEMENT, VOLUNTARY DISMISSAL, COM15 PROMISE, OR AGREED UPON REMAND.—The appeal of the 

16 appellant and a common issue of law or fact in a class 

17 action may be settled, voluntarily dismissed, compromised, 

18 or remanded by agreement only with the permission of the 

19 Court. The following procedures apply to a proposed set20 tlement, voluntary dismissal, compromise, or agreed upon 

21 remand: 

22 ‘‘(1) The Court shall direct notice to all mem23 bers of the class who are reasonably identifiable and 

24 would be bound or affected by the proposal to settle, 

25 dismiss, compromise, or remand the matter. 


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1 ‘‘(2) If the proposal to settle, dismiss, com2 promise, or remand the matter would bind a member 

3 of the class, the Court may approve such proposal 

4 only after a hearing, for which notice is provided to 

5 the class, and on findings that such proposal is fair, 

6 reasonable, and adequate. 

7 ‘‘(3) The parties seeing approval of a proposal 

8 to settle, dismiss, compromise, or remand the matter 

9 shall file a statement with the Court identifying any 

10 agreement made in connection with such proposal. 

11 ‘‘(4) Any member of the class may object to the 

12 proposal to settle, dismiss, compromise, or remand 

13 the matter under any reasonable means the Court 

14 establishes for such objections and such objection 

15 may only be withdrawn with the permission of the 

16 Court. 

17 ‘‘(h) ATTORNEYS’ FEES AND COSTS.—Counsel ap18 pointed under subsection (e) to represent the class, and 

19 counsel for an intervenor under subsection (f), may seek 

20 an award of fees and costs under section 2412 of title 28. 

21 Nothing in this section shall affect any right of initial 

22 counsel for the representative party from also seeking an 

23 award of fees under such section. 

24 ‘‘(i) APPEALS.—Any member of the class, or indi25 vidual who would be a member of the class if class certifiVerDate Mar 15 2010 03:37 Jul 16, 2014 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5088.IH H5088

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1 cation was granted under subsection (c)(3), may appeal 

2 any decision of the Court issued under this section, includ3 ing an order granting or denying class certification, under 

4 the terms set forth in section 7292 of this title. The 

5 United States Court of Appeals for the Federal Circuit 

6 shall have exclusive jurisdiction to review and decide any 

7 such appeal and the provisions of subsections (d)(1) and 

8 (e) of section 7292 of this title shall be applicable to such 

9 appeal.’’. 

10 (b) CLERICAL AMENDMENT.—The table of sections 

11 at the beginning of such chapter is amended by inserting 

12 after the item relating to section 7269 the following new 

13 item: 

‘‘7270. Class actions.’’. 

14 SEC. 3. SALARY OF JUDGES OF COURT OF APPEALS FOR 

15 VETERANS CLAIMS. 

16 Section 7253(e) of title 38, United States Code, is 

17 amended by striking ‘‘district courts’’ and inserting 

18 ‘‘courts of appeals’’. 

Æ 


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