Davis v. United States of America, 3:16-cv-06258

Plaintiffs Doris Davis and Marion Grant are survivors of Nehmer class members whose veterans’ disability ratings were retroactively increased after ischemic heart disease was added to the Agent Orange presumptions. Neither had received retroactive military retired pay from DFAS when they filed this putative class action in Oct. 2016.
After suit was filed, DFAS mailed Davis $2,900 (which Davis does not dispute is the amount due) in Dec. 2016; DFAS explains payment followed review to confirm a current address. Davis says she received no explanation with the check.
While the dismissal motion was pending, DFAS mailed Grant $1,934.53 after Grant’s counsel submitted an SF-1174 form in April 2017; Plaintiffs dispute whether the form was required and whether the amount is correct.
Defendants moved to dismiss as moot (arguing individual relief was paid) and to stay discovery; they also moved to strike Plaintiffs’ jury demand. Defendants earlier raised standing for Grant but withdrew that argument after Grant submitted the SF-1174.
The court denied dismissal on mootness grounds, finding Plaintiffs’ claims subject to the Ninth Circuit’s exception for cases where defendants could “pick off” named plaintiffs and thereby evade class review; the court struck Plaintiffs’ jury demand and denied the stay of discovery as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness / class viability (picking off)	Plaintiffs seek class relief; individual payments do not moot class claims because defendants are using litigation to avoid class certification	Payments to named plaintiffs render claims moot and the case should be dismissed	Denied dismissal. Court finds exception to mootness applies because defendants’ conduct could ‘‘pick off’’ named plaintiffs and evade class review
Whether claims are inherently transitory	Plaintiffs: claims are susceptible to being mooted by defendants’ post-filing payments and thus class action review is needed	Defendants: plaintiffs’ claims were fully satisfied (Davis paid earlier; Grant’s SF-1174 delayed payment)	Court: transitory by defendant strategy; exception to mootness applies
Jury demand	Plaintiffs preserved jury demand	Defendants: no jury right against the U.S. or under the APA	Granted for defendants: Plaintiffs’ jury demand is stricken (Plaintiffs conceded by not opposing)
Stay of discovery	Plaintiffs oppose stay to proceed with discovery	Defendants sought stay pending resolution of dismissal motion	Denied as moot because motion to dismiss resolved and case proceeds

Slayman v. FedEx Ground Package Sys., Inc., 765 F.3d 1033 (9th Cir. 2014) (general rule that a plaintiff’s mootness before class certification normally moots the class action)
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (addressing unfair ‘‘picking off’’ by defendants and preserving right to seek class certification)
Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) (applying Pitts and permitting class certification efforts despite alleged satisfaction of individual claims)
Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d 846 (9th Cir. 2007) (background on longstanding VA/DFAS issues concerning Agent Orange-related benefits)