Hubbell v. Collins — Class certification denied where proposed class failed Rule 23(a) commonality, typicality, and superiority requirements

This per curiam order addresses appellant Annette S. Hubbell’s request for class certification in the context of an appeal from a Board decision denying service connection for bilateral hearing loss and tinnitus. Appellant sought to certify a class of claimants allegedly not given notice of the right to a predetermination hearing under 38 C.F.R. § 3.103(d)(1), arguing that VA’s pre-August 2024 notice forms failed to inform claimants of that right. The Court first explained that, in an appeal posture, its class-certification authority is limited by appellate jurisdiction and cannot extend to claimants who have not received a final Board decision. The Court then held that appellant’s request was underdeveloped and, independently, failed Rule 23(a) because individualized harmless-error/prejudice analysis defeated commonality and typicality. The Court also concluded that appellant did not show that a class action was superior to a precedential decision, particularly given jurisdictional constraints and the need for claimant-specific prejudice determinations. The request for class certification and class action was denied, and the Court expressly did not address the merits of the underlying service-connection appeal.

A proposed class in the Veterans Court must satisfy Rule 23(a) and be limited to claimants within the Court’s appellate jurisdiction; when the alleged error requires individualized prejudice analysis, commonality and typicality may fail, and class relief may be inferior to a precedential decision.

Class certification is not a shortcut around Veterans Court jurisdiction or prejudice analysis. If the alleged agency defect turns on whether each claimant was actually harmed, a precedential decision will often be the more viable path.

The case is a practical reminder that class-action requests in the Veterans Court face two major hurdles: jurisdictional limits after Skaar and the need to show that the issue can truly be resolved on a classwide basis. It is especially important for cases involving notice defects, because harmless-error review can make individualized facts dispositive.

Failure to show classwide commonality and typicality where prejudice must be assessed claim by claim.

A representative claimant seeks to certify a class of veterans who received defective VA notice about hearing rights, but the record shows some claimants may have had actual notice through other forms or later correspondence. The court denies class certification because determining harm requires individualized review.

Use this decision to oppose overbroad class-certification requests and to argue that notice-error cases belong in a precedential merits decision rather than aggregate relief when prejudice is individualized. It also supports narrowing any proposed class to claimants with final Board decisions if class treatment is otherwise pursued.

Skaar v. McDonough, Skaar v. Wilkie, Wal-Mart Stores, Inc. v. Dukes, Shinseki v. Sanders, Gladney-Chase v. Collins