Paul, Weiss Files Amicus Brief in Article III Standing Case Involving Veterans’ Access to Benefits Forms

Paul, Weiss filed an amicus brief on behalf of Professor Jon Romberg, a legal scholar of Article III standing, in a suit challenging the U.S. Department of Veterans Affairs’ (VA) failure to provide necessary benefits application forms to veterans. The brief, filed in a Federal Circuit appeal of the case’s dismissal due to lack of Article III standing, argues that the Secretary of Veteran Affairs’ scheme to shift the burden of securing the forms to veterans themselves comprises a concrete injury in fact, including because the secretary’s statutory violation constitutes an informational injury. The brief addresses novel questions of standing that courts have yet to address since the Supreme Court’s decision in Transunion v. Ramirez.

The lawsuit, Burton R. Ripley v. Douglas A. Collins, Secretary of Veterans Affairs, was filed by class representative Burton Ripley, who challenged the VA’s practice of sending template letters to prospective claimants stating that they could access application forms on the VA’s website rather than providing the forms itself, as required by law. In October 2021, Ripley notified the VA of his intent to apply for benefits, triggering a requirement that, under Title 38 of the U.S. code and upon request of a claimant, “the [VA] Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.” Instead, the VA sent Ripley a template letter providing a typed-out URL (rather than a hyperlink) to access a website by which a claimant may, with time, effort and internet access, locate the forms and instructions.

Ripley, together with two other veterans, filed suit in the U.S. Court of Appeals for Veterans Claims, arguing that the VA secretary’s failure to furnish the requested forms unlawfully shifted his burden to the claimants. They sought class-wide injunctive relief and/or a writ of mandamus to compel the secretary to comply with the law by mailing them and all class members copies of the appropriate benefits application forms.

During the three years after Ripley’s case was argued and before the veterans court issued its decision, the other two petitioners passed away, leaving only Ripley as class representative. On March 24, the veterans court issued an en banc decision dismissing the suit and finding that Ripley lacked Article III standing to sue because he failed to sufficiently allege concrete injury in fact.

Our amicus brief argues that the secretary’s burden-shifting scheme comprises concrete injury in fact. It discusses Article III jurisprudence under which the secretary’s substantive failure to do what Congress mandated is in and of itself a concrete informational injury without requiring that Ripley show any additional harm. First, it describes the statutory and regulatory framework underpinning the secretary’s express statutory obligation to affirmatively furnish claimants with the necessary forms and instructions, free of all expense, and explains that the template letter runs afoul of the very interests Congress sought to protect. The relevant statute’s legislative history—including the provision’s only substantive update that was made as part of The Veterans Claims Act of 2000—points to a Congressional intent that the affirmative burden to “furnish” resides with the secretary and that the prospective claimant is protected from the need to undertake any effort or expense to access the forms and instructions to apply for benefits.

Second, our brief argues that, even if the showing of informational injury alone was not sufficient, the secretary’s statutory violation presented the very material risk of harm that Congress recognized veterans face absent the right to be affirmatively furnished the form and instructions. Finally, it responded to the secretary’s circular argument that Ripley’s ability to procure assistance from veterans groups and lawyers who were able to assist him demonstrates he did not suffer concrete harm. It notes that this argument is flawed because it confuses the act of filing the lawsuit with the underlying injury caused by the filing limitation itself. The fact that Ripley took upon himself the burden and expense of procuring assistance does not eliminate the burden imposed on Ripley to seek their assistance in doing so, nor does it eliminate the material risk of harm he faced.

The Paul, Weiss team included antitrust partner Christopher Wilson and litigation associates Amanda Valerio-Esene, Vanessa Moody, Lauren Perez and Matthew Kaminer.