Amicus Brief of Administrative Law, Civil Procedure, and Federal Courts Professors in Monk v. Shulkin

44 Pages Posted: 22 Feb 2018

See all articles by Michael Sant'Ambrogio

Michael Sant'Ambrogio

Michigan State University - College of Law

Adam S. Zimmerman

USC Gould School of Law

Date Written: February 8, 2018


In April 2017, the Federal Circuit concluded for the first time that the Court of Appeals for Veteran's Claims (CAVC), the exclusive forum for challenging certain VA decisions, had the power to hear class actions. As a result, the CAVC issued an order inviting amici to answer twelve probing questions about how it should structure class actions for injunctive and declaratory relief. This amicus brief--the third of a series of amicus briefs written on behalf of leading scholars of administrative law, civil procedure and federal jurisprudence--answers four of the court's questions.

First, the brief explains why the Court should draw on the framework for class certification set forth in Rule 23 of the Federal Rules of Civil Procedure. Borrowing well-established rules that govern class actions in federal court will help guide parties’ motion practice and resolve pending claims, while offering the court insights that will aid in developing more formal rules in the future. Second, appellate level tribunals, like the CAVC, have broad discretion to aggregate cases. The CAVC can resolve evidentiary issues in class actions using tools commonly used by other appellate courts and three-judge panels.Third, courts often have discretion to provide notice to proposed class members in injunctive relief cases (which the CAVC will most likely hear), so long as notice will not unduly delay or otherwise jeopardize the action. Because the relief sought in injunctive and declaratory relief actions often will apply the same way for the whole class, however, courts and agencies only rarely permit parties to opt out from such actions.

Finally, the brief explains why class actions are superior to precedential decisions in a number of settings, including when: (1) petitioners’ claims might otherwise be rendered moot; (2) a class facilitates the enforcement of judgments by class members; (3) there is no certainty the defendant would apply judgments uniformly to the class members; and (4) the class will effectively bring about institutional change. Class resolution of such claims ensures that relief is provided expeditiously, consistently, and fairly to all members of the class.

Suggested Citation

Sant'Ambrogio, Michael and Zimmerman, Adam S., Amicus Brief of Administrative Law, Civil Procedure, and Federal Courts Professors in Monk v. Shulkin (February 8, 2018). Available at SSRN: or

Michael Sant'Ambrogio

Michigan State University - College of Law ( email )

648 N. Shaw Lane
Room 367
East Lansing, MI 48824-1300
United States

Adam S. Zimmerman (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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