Paul Hastings LLP, a leading global law firm, along with its pro bono partner Public Counsel, secured a significant and decisive pro bono victory for veterans and their caregivers after the U.S. Court of Appeals for Veterans Claims ruled that veterans and caregivers can now appeal decisions under the Program of Comprehensive Assistance for Family Caregivers (Caregiver Program).

The Court not only granted prospective relief in the form of an injunction requiring the VA to permit such appeals going forward, but the Court also certified a class of claimants who were denied the right to pursue such appeals to ensure they are notified of their restored appeal rights. The decision means thousands of past veterans and caregivers over the last decade are now eligible to get review at the Board of Veterans’ Appeals (and, if necessary, subsequent judicial review) of past VA decisions denying or revoking Caregiver Program benefits, with the potential to recover retroactive benefits.

“It is hard to overstate the significance of this ruling and the hurdles it took to secure it,” said Andy LeGolvan, senior associate, Paul Hastings. “The VA’s decision to deny appeal rights for Caregiver Program claimants not only prevented veterans and caregivers from obtaining their benefits, but it also hindered any claimant from challenging the VA’s policy of prohibiting such appeals. The Veterans Court has now decisively determined that the VA had the law wrong for nearly a decade—and, critically, found that the VA now bears responsibility for rectifying the effects of its unlawful policy. We look forward to working with the VA to enforce the Court’s order to ensure all members of the class are properly notified of their restored appeal rights.”

Background

In 2010, Congress created the popular VA Caregiver Program to provide critical benefits to caregivers of seriously injured combat veterans, including health care and a monetary stipend for the caregiver. The purpose of the program is to ensure caregivers are taken care of so they can provide the best care possible for their veteran loved ones. However, the VA grossly underestimated the amount of veterans and caregivers that would be eligible for the program; and after a few years of operating the program, the VA began to revoke veterans and caregivers from the program in mass numbers (approximately 20,000 claimants were revoked since its inception). Moreover, since the program’s inception, the VA took the position that the VA’s benefits decisions under the Caregiver Program are final and cannot be appealed outside of the VA—which is in contrast to other VA benefits decisions which can be appealed to the Board of Veterans’ Appeals and subsequently to multiple federal appellate courts. As a result, tens of thousands of veteran and caregivers have been denied or revoked from the Caregiver Program without any meaningful review path to challenge the erroneous decisions.

Class Action Petition

In July 2020, Paul Hastings filed a class action petition in the U.S. Court of Appeals for Veterans Claims asking the Court to issue a writ of mandamus to require the VA to allow Caregiver Program decisions to be appealed through the ordinary appeals path for VA benefits decisions. After extensive briefing and oral argument before the three-judge panel, which included the merits of the petition and class certification, the Court ruled decisively in our favor, ordering that Board and judicial review must be made available for pending and future Caregiver Program decisions, and certifying a class of past claimants and requiring the VA to notify each member of the class (going back potentially 10 years) and provide these individuals with the opportunity to pursue appeal rights for their past Caregiver Program claims. This is one of only a handful of class actions that have been certified in this Court—thus not only benefitting past, present, and future veterans and caregivers, but also setting favorable class action precedent for veterans in general.

“This past year has taught us how critically important caregivers are not only to veterans, but our broader communities. Too often the work of caregivers is overlooked, unpaid and undervalued. Congress recognized this and provided a means to compensate and provide some benefits to the caregivers of our veterans. But regulatory rules enabled the VA to unjustly deny these benefits without providing any recourse,” said Randall Johnston, senior associate, Paul Hastings. Now, these veterans and their caregivers finally have a means to appeal caregiver benefit denials.”

Paul Hastings’ Pro Bono team included Joshua Bennett, Scott Carlton, Michael Fisher, Brian Gzowski, Kurt Hansson, Randall Johnston, Andy LeGolvan, Brian Moran, Barry Sher, Igor Timofeyev, and Sean Unger.

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