Flipping the Lights On: Court Orders VA to Address the “Delay” Class Action
Long time no speak. Sorry, I’ve been busier than a church fan in the dog days of summer. I recently got back from our Spring Conference in sunny San Diego. Wouldn’t you know, they even brought in the VA Inspector General, Cheryl Mason—armed with agents and the whole 9—to talk to us. I got the chance to talk with her a little one on one. Boy, she has her hands full. Keep your eye on those OIG reports. Anyways, the wait for justice just got a little shorter (and the pressure on the VA just got a lot higher). Let me explain.
What Delay?
If you haven’t read my first part about “regular order,” you can do so here. It gives a good background. For years, Veterans have been told to “wait your turn” as the Board sits on cases for months or even years without action. Along comes Mr. Cartwright, who is the lead Petitioner in the class action request our office helped file. Then comes another Veteran in the same boat. He filed his appeal to the Board in October 2020. Yet, as of yesterday, no decision from the Board. What gives? He even had his hearing in 2024. So nearly two years later, nadda. We’ll get back to the class action in a second. As part of a litmus test, our office helped this Veteran file an individual Petition. His facts are near identical to Mr. Cartwright, both have appeals pending since 2020. Both have had their Board hearing, but no decision?
The VA Responds
As is pretty typical with an individual Petition, the Court ordered a response. In typical VA fashion, the VA responded that while there has been a delay, it is just a result of the poor overburdened VA. They are working as hard as they can, this Veteran just hasn’t gotten to the front of the line yet; glossing over the his entire point: he has been skipped over in line. Instead, the VA argued he is trying to jump to the front of the line.
True, the Board has some long wait times, but the entire argument here is that this Veteran keeps getting passed over, time after time. The Board continues to decide appeals out of order, with no end in sight. Will he ever get to the front of the line?
Enough is Enough
For reference, the Court gets hundreds of writ petitions in a year’s time. They grant, on average, less than 5 a year. So, this is not only rare, but sends a clear message to the VA. According to the Court, “But Mr. Willars is not asking for his case to proceed faster. He asserts that "his case has been skipped over in docket order, contravening Congress's mandate.”
“Tracking only those appeals that have not been advanced on the Board's docket or resulted from a Court remand, the exhibit refers to numerous hearing-lane decisions that were issued in dockets filed after Mr. Willars's October 2020 docket. Consider, by means of a random example, the fourteen Board appeals docketed on January 11, 2021, for which a hearing was requested. Of these fourteen appeals, three have been allowed without a remand, while three have been allowed with a remand (meaning six in total have been allowed in some capacity); two appeals, in turn, have been denied, while seven are listed as "other" and so presumably resulted in either a dismissal or some alternate dispositions. In sum, at least eight of the fourteen appeals docketed on a particular day three months after Mr. Willars's appeal have already been adjudicated. Although this is a descriptive example, the record contains countless examples of hearing-lane cases docketed months (or years) after Mr. Willars's appeal that have already been adjudicated. On that point, as of mid-2024 or early 2025, the Board has adjudicated the merits of hearing-lane appeals that were filed in late 2021. And it also adjudicated many of the hearing-lane appeals that were filed in mid-2022, as of fall 2024. The Board has even remanded or granted some hearing-lane appeals that were filed in 2024,” (citations omitted).
“Yet Mr. Willars awaits a decision on his appeal filed in October 2020. Thus, he explains that a writ would merely place him "in the place in line he would have been had the VA not unreasonably delayed his case."”
“For that reason, the Court isn't persuaded by the Secretary's underlying argument.”
“Based on the record and the Secretary's explanation, the Court can only conclude that Mr. Willars has satisfied his case-specific burden to show that relief is necessary.”
The Court then ordered the Board to decide the Veteran’s appeal within 30-days.
Well, you sure don’t see that every day. Things may be looking good for the class action.
The Bigger Picture: Class Action Response Ordered
While the individual victory is good for one Veteran, the most impactful part of the Court’s recent orders involves Mr. Cartwright’s request for class action.
For too long, the VA has treated these delays as isolated incidents. We know better. These aren't “glitches,” or a one off, they are systemic failures. The Court has now ordered the Secretary of the VA to formally respond to the request for class certification. On March 23, 2026, the Court issued a panel order requiring the VA to respond to the request for class certification within 90-days.
So, the clock is ticking for the VA. Keep your PRC-77 dry and transmitting for updates.
Godspeed.
