Rule 23: Action on a Request for Class Certification and Class Action (RCA)

(a) Prerequisites. One or more members of a class may submit an RCA as representative parties on behalf of all members only if:

(1) the class is so numerous that consolidating individual actions in the Court is impracticable;

(2) there are questions of law or fact common to the class;

(3) the legal issue or issues being raised by the representative parties on the merits are typical of the legal issues that could be raised by the class;

(4) the representative parties will fairly and adequately protect the interests of the class; and

(5) the Secretary or one or more official(s), agent(s), or employee(s) of the Department of Veterans Affairs has acted or failed to act on grounds that apply generally to the class, so that final injunctive or other appropriate relief is appropriate respecting the class as a whole.

(b) Processing the RCA.

(1) Action on the RCA.

(A) If the RCA lacks sufficient specificity and detail, the Court may order the proponent to provide sufficient specificity and detailed information within a fixed period of time.

(B) A proponent may amend the RCA once as a matter of course within 21 days after serving it, and otherwise only with the Court's leave. The Court should freely give leave when justice so requires.

(2) Staff Conference and Response.

(A) The Court may determine that the RCA should be dismissed or denied without need for either a Rule 33 Staff Conference or a response from the respondent. Alternatively, the Court may order the respondent to serve and file a response to the RCA within a fixed period of time, not to exceed 90 days, and may order the parties to participate in a Rule 33 Staff Conference either before or after a response is filed. In the response, the respondent shall include:

(i) a statement as to whether the respondent opposes class certification and, if so, the reasons for that opposition addressing with specificity the issues raised in the RCA;

(ii) if the Secretary does not concede numerosity, the Secretary's reasons for such opposition and a statement of the actual or estimated number of putative class members, if feasible, or an explanation as to why the number of putative class members cannot be determined or estimated; and

(iii) a statement of the facts necessary to respond to allegations in the RCA that the respondent has acted or failed to act with respect to the putative class and, if ordered by the Court, an appendix containing documents that evidence the foregoing facts.

(B) Form and Length. Except by permission of the Court, the response may not exceed 30 pages and must comply with the form requirements in Rule 32 (Form of Briefs, Appendices, and Other Documents) for principal briefs.

(3) Reply. The Court may grant leave for the RCA proponent to file a reply to the response.

(c) Certification Order; Notice to Class Members; Judgment; Issue Classes; Subclasses.

(1) Certification Order.

(A) Action by the Court. At an early practicable time after the RCA and response and reply, if ordered, have been filed, the Court will determine by order whether to certify the action as a class action. Within 14 days after issuance of the Court's order on certification, any party may file a motion to stay proceedings to permit the filing of an appeal of the Court's grant or denial of class certification.

(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(f). An order certifying a class may serve only to commence the class action proceeding and direct further action of the parties or may address all relief sought and conclude Court action on the RCA.

(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.

(2) Notice to Class Members. For any class certified under this Rule, the Court need not, but may, direct notice to the class.

(3) Judgment. Whether or not favorable to the class, the judgment in a class action must include and describe those whom the Court finds to be class members.

(4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.

(5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this Rule.

(d) Managing the Action.

(1) In General. In managing the litigation of a class action proceeding under this Rule, the Court may issue all orders that it deems necessary and proper.

(2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 33.

(e) Settlement, Voluntary Dismissal, or Compromise. Once a class is certified, the claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the Court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1) The Court must direct notice in a reasonable manner to all class members who would be bound by the proposal.

(2) If the proposal would bind class members, the Court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.

(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.

(4) Any class member may object to the proposal if it requires Court approval under this subdivision (e); the objection may be withdrawn only with the Court's approval.

(f) Class Counsel.

(1) Appointing Class Counsel. Unless a statute provides otherwise, the Court must appoint class counsel. In appointing class counsel, the Court:

(A) must consider:

(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class;

(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs;

(D) may include in the appointing order provisions about the award of attorney fees or nontaxable costs under Rule 23(g); and

(E) may make further orders in connection with the appointment.

(2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the Court may appoint that applicant only if the applicant is adequate under Rule 23(f)(1) and (4). If more than one adequate applicant seeks appointment, the Court must appoint the applicant best able to represent the interests of the class. Class counsel shall be designated as the lead representative under Rule 46(b)(1)(D); additional representatives may appear with approval of the Court and consent of class counsel.

(3) Interim Counsel. The Court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

(4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.

(5) Limitation on Role of Class Counsel.

(A) The role of class counsel is to act as lead counsel on all issues related to the class proceedings before the Court.

(B) Representation of class members before the agency is a matter between class counsel and class members.

(g) Attorney Fees and Nontaxable Costs. In a certified class action, the Court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties' agreement. A claim for an award must be made by application under Rule 39, at a time the Court sets. Notice of the application must be served on all parties.