Victor B. Skaar v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 17-2574

VICTOR B. SKAAR, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG, ALLEN, MEREDITH, TOTH,

FALVEY, Judges; and DAVIS and SCHOELEN, Senior Judges.*

ALLEN, Judge, with BARTLEY, Chief Judge, and GREENBERG, TOTH, Judges; and

DAVIS, Senior Judge.

SCHOELEN, Senior Judge, concurring in part and dissenting in part.

FALVEY, Judge, with PIETSCH and MEREDITH, Judges, dissenting.

ORDER

United States Air Force veteran Victor B. Skaar was exposed to ionizing radiation while

participating in the cleanup of plutonium dust in Palomares, Spain, following a midair aircraft

collision. He later developed a blood disorder, leukopenia, which he believes was caused by in-

service radiation exposure, even though an Air Force radiation dose estimate found the levels of

exposure he suffered far below those required to cause his disability. In an April 14, 2017, decision

the Board of Veterans' Appeals (Board) denied him service connection. This appeal followed.

We do not today address the merits of Mr. Skaar's claim. Rather, we consider his motion

to certify a class of similarly situated veterans to proceed in an aggregate action. The issue we

confront here—class certification in the context of an appeal of an individual Board decision—is

one of first impression. For many years, we held this Court categorically lacked the power to certify

classes. See Monk v. McDonald, No. 15-1280, 2015 WL 3407451, at *3 (May 27, 2015) (Monk I);

Harrison v. Derwinski, 1 Vet.App. 438, 439 (1991) (en banc) (per curiam); Lefkowitz v. Derwinski,

1 Vet.App. 439, 440 (1991) (en banc) (per curiam). This changed when the United States Court of

Appeals for the Federal Circuit (Federal Circuit) held we possess, at least in certain contexts, the

authority to certify class actions. Monk v. Shulkin, 855 F.3d 1312, 1321-22 (Fed. Cir. 2017) (Monk

II). We then held we would, in appropriate cases, certify classes seeking writs of mandamus under

the All Writs Act. Monk v. Wilkie (Monk III), 30 Vet.App. 167, 174 (2018); see, e.g., Godsey v.

Wilkie, 31 Vet.App. 207, 220-25 (2019); see also Wolfe v. Wilkie, __ Vet.App. __, No. 18-6091,

2019 WL 4254039, at *14-19 (Sept. 9, 2019).

*

Judges Davis and Schoelen are Senior Judges acting in recall status. In re: Recall of Reitred Judge, U.S.

VET. APP. MISC. ORDERS 16-19, 17-19 (Dec. 4, 2019).

1

This brings us to Mr. Skaar's motion for class certification. We hold (1) the Court may, in

appropriate situations, certify classes in the context of an individual appeal of a Board decision;

(2) our jurisdiction allows us to include in such classes both persons who have obtained a final

Board decision as well as those who have not; and (3) as in the petition context, we will use Federal

Rule of Civil Procedure 23 as a guide when deciding whether to grant class certification. Finally,

class certification will be reserved for those cases where appellants demonstrate the class device

is a superior vehicle for litigating the class claim than a precedential decision. Applying these

principles, we grant in part and deny in part the motion for class certification.

2

TABLE OF CONTENTS

I. BACKGROUND ........................................................................................................................ 4

II. ANALYSIS ............................................................................................................................... 8

A. Standing ................................................................................................................................. 9

1. Mr. Skaar lacks standing to pursue the § 3.309 claim on behalf of the class. ................... 9

2. Mr. Skaar has standing to pursue the § 3.311 claim on behalf of the class. .................... 10

B. The Power To Certify Class Actions in the Appeal Context ............................................... 13

C. The Utility of Class Actions in the Appeal Context............................................................. 14

D. The Proposed Class Composition ........................................................................................ 15

1. The Present-Future and Future-Future Claimants........................................................... 16

2. The Expired Claimants ..................................................................................................... 22

3. The Past Claimants ........................................................................................................... 24

E. Class Certification Analysis ................................................................................................. 25

1. The proposed class is so numerous that joinder would be impracticable. ....................... 26

2. The proposed class presents a common issue capable of classwide resolution. .............. 27

3. Mr. Skaar's claim is typical of that of the proposed class. ............................................... 28

4. Mr. Skaar will fairly and adequately protect the interests of the class. ........................... 29

5. The requested injunctive relief is appropriate respecting the class as a whole. .............. 29

6. The class action device is a superior method of litigating the class claim. ..................... 30

7. Proposed counsel is adequate. ......................................................................................... 34

8. Generalized notice of class certification is required but opt out rights are not. .............. 35

III. CONCLUSION ..................................................................................................................... 36

3

I. BACKGROUND

In the early morning hours of January 17, 1966, a U.S. Air Force B-52 Superfortress

bomber, armed with four thermonuclear weapons, collided with a KC-135 refueling tanker over

the small fishing village of Palomares, Spain. See Record (R.) at 28-29, 560, 796-98, 1878-80,

3509, 3557-802. Part of Operation Chrome Dome, a U.S. military plan calling for continuous

patrol by nuclear bombers around the airspace of the former Soviet Union, the bomber was

supposed to refuel with the tanker for the trip home. R. at 3574-76. The midair collision destroyed

both aircraft, and the bomber's atomic payload was scattered across the Spanish countryside. R. at

3605-07. Eventually, one weapon was recovered intact and another fished from the depths of the

Mediterranean. R. at 3613-32. Emergency parachutes attached to the other two bombs, however,

failed to deploy. R. at 3603-04. Both bombs impacted at high speeds, causing internal, nonnuclear

explosives in the devices to detonate. R. at 3606-07. The resulting explosions released a cloud of

radioactive plutonium dust over the area, contaminating soil and crops, and spreading radioactive

debris for miles. R. at 1878.

Mr. Skaar, along with nearly 1,400 other U.S. military personnel, was sent to the accident

site to assist in cleanup and monitoring efforts. While there, to assess possible radioactive

exposure, the military personnel gave urine and nasal swab samples. Mr. Skaar was a member of

a group of the 26 service members (the High 26) who were determined to be among the most

exposed and who were monitored for a period of 18 to 24 months after the accident for signs of

radiogenic conditions. R. at 2124-28. The monitoring efforts were discontinued, however, in

December 1967 when the Air Force informed Mr. Skaar his "health is in no jeopardy from retention

of radioactive materials as a result of participation in the [Palomares cleanup] operation." R. at

2430.

But in 1998, 32 years after the Palomares cleanup, Mr. Skaar was diagnosed with

leukopenia, a decrease in white blood cell count. R. 2157. The diagnosing physician opined that

exposure to ionizing radiation "[h]istorically does appear to be the positive agent" causing

leukopenia, but concluded "we have been unable to prove this." Id. Mr. Skaar then filed a claim

with VA, seeking service connection for that condition. R. at 2155. In February 2000, VA denied

his claim. See R. at 2090-99. This was so, VA explained, because leukopenia is not a radiogenic

disease VA recognizes as resulting from a "radiation-risk activity," and because Mr. Skaar had not

presented sound scientific or medical evidence linking the disease to radiation exposure. R. at

2097.

Two separate regulatory paths lead to to service connection for veterans who suffer a

disability they believe was caused by exposure to ionizing radiation. Both are at issue here as part

of Mr. Skaar's motion for class certification. Under 38 C.F.R. § 3.309(d)(3)(ii), VA recognizes

certain nuclear incidents as "radiation-risk activities." Those who participated in a radiation-risk

activity listed in § 3.309 and who later developed one or more of the radiogenic diseases

enumerated in § 3.309(d)(1) benefit from a presumption of service connection. § 3.309(a). For

those who did not participate in a listed radiation-risk activity, § 3.311(a) is available. See Hilkert

v. West, 12 Vet.App. 145, 148-49 (1999) (en banc). Under that provision, VA requests exposure

data from a veteran's service branch. 38 C.F.R. § 3.311(a)(1)-(2). For those claims that meet certain

threshold requirements, the Under Secretary for Benefits then reviews the gathered information

4

and determines whether "sound scientific and medical evidence supports the conclusion [that] it is

at least as likely as not" the condition is the result of ionizing radiation exposure. § 3.311(a), (c).

The regulation defines "sound scientific evidence" as "observations, findings, or conclusions

which are statistically and epidemiologically valid, are statistically significant, are capable of

replication, and withstand peer review," and "sound scientific medical evidence" as "observations,

findings, or conclusions which are consistent with current medical knowledge and are so

reasonable and logical as to serve as the basis of management of a medical condition."

§ 3.311(c)(3). In making that determination, the Under Secretary for Benefits may request an

advisory opinion from the Under Secretary for Health. § 3.311(c)(1). The Under Secretary's final

determination is then sent to the agency of original jurisdiction, which considers the opinion as

evidence. § 3.311(f). For Palomares veterans, § 3.309's presumption of service connection is

unavailable because VA does not recognize the Palomares plutonium dust cleanup as a radiation-

risk activity. So instead, veterans such as Mr. Skaar must seek service connection under § 3.311's

less favorable provisions. See Ramey v. Gober, 120 F.3d 1239, 1242-43 (Fed. Cir. 1997).

The Air Force provides VA with dose estimates for Palomares veterans. In April 2001, a

consulting firm, Labat-Anderson, evaluated the Air Force's dose methodology. See R. at 2682-

2818. This evaluation culminated in a report (the LA Report or the Report) establishing

preliminary dose estimates for various subcategories of veterans. R. at 2691. The LA Report stated

that the recorded urine dose intakes for Palomares veterans "seemed unreasonably high" compared

to "environmental measurements" derived from air sampling some 15 years after the cleanup and

"estimates prepared for other plutonium exposure cases – persons residing in the Palomares

vicinity and Manhattan Project workers." R. at 2701. These air samples and comparisons "provided

a basis for preparing independent estimates of intake and dose using representative scenarios"

rather than actual recorded dose intakes. R. at 2691. After comparing those "independent

estimates" with the actual recorded dose intakes, the Report "excluded data from the on-site

samples and attributed more significance to samples collected at later dates for the High 26 Group."

R. at 2795. This exclusion of "unreasonably high" dose estimates forms the basis for Mr. Skaar's

allegation that the Air Force's dose estimates do not constitute "sound scientific evidence" as

required by law. See Appellant's Apr. 23, 2019, Response (Resp.) at 4. The Report noted its

findings "represent preliminary estimates that cannot be considered as definitive" and

recommended further study "to develop credible estimates of dose that are compatible with those

calculated from environmental data." Id. Despite these reservations, the Air Force adopted the LA

Report's dose estimate methodology in full. See R. at 1580-81, 3508-511.

After VA's initial denial in 2000, Mr. Skaar requested that VA reopen his claim in March

2011. R. at 2077. Based on that claim and per § 3.311, the regional office (RO) requested a

radiation exposure opinion. R. at 1886. In response, the Air Force estimated in April 2012 that Mr.

Skaar's maximum total effective dose during the Palomares cleanup was 4.2 rem with a bone

marrow committed dose of 1.18 rem, compared to annual dose limits of 5 and 50 rem, respectively,

for occupations typically involving radiation exposure.1 R. at 1888-89. Based on these estimates,

the director of the Post 9/11 Environmental Health Program, writing for the Under Secretary for

Benefits, advised in May 2012 that "it is unlikely that [Mr. Skaar's] leukopenia . . . can be attributed

1

A rem (roentgen equivalent man) is the unit of measurement for radiation. One unit represents "the dosage

of a ionizing radiation that will cause the same biological effect as one roentgen of X-ray or gamma-ray exposure."

MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/rem (last visited Oct. 31, 2019).

5

to radiation exposure while in military service." R. at 1877. And, based on this opinion, the RO in

June 2012 denied Mr. Skaar's claim. R. at 1869. Mr. Skaar timely disagreed with the RO's denial,

but the RO continued to deny the claim in September 2013. R. at 1690-91. He then perfected an

appeal to the Board. R. at 1588-89.

In October 2013, a private physician opined that Mr. Skaar's leukopenia "is likely related

to exposure to heavy radioactive material in [1966]." R. at 39-40. And 2 months later, the Air Force

concluded an evaluation of its radiation dose methodology that revealed "inconsistencies in dose

assignment over the past 12 years" since the LA Report. R. at 1580. The Air Force's methodology,

derived from the LA Report, "appear[ed] to underestimate doses to some individuals" and, thus,

the Air Force intended to "formally standardize [its] response methodology for radiation dose

inquiries involving Palomares participants" by establishing dose estimates based on each veteran's

specific duties. Id. Finally, the Air Force stated it would reevaluate the individual dose estimates

it had already provided for Palomares veterans. R. at 1581. And in June 2014, the Air Force

provided VA with Mr. Skaar's revised dose estimate, assigning him a new maximum total effective

dose of 17.9 rem and a bone marrow committed dose of 14.2 rem. See R. at 1301, 1274-75.

Meanwhile, the Board in May 2015 found the Air Force's revised dose estimates were new

and material evidence warranting reopening of Mr. Skaar's claim. R. at 695-99. The Board then

remanded the claim to the RO because the Air Force's "revised assessment [was] significantly

higher than the April 2012 assessment" and, thus, "another [dose estimate] opinion [was]

warranted." R. at 698. That opinion was provided in August 2016. The RO found that, based on

the revised bone marrow committed dose estimate of 14.2 rem, "it is not likely that the Veteran's

leukopenia was caused by exposure to ionizing radiation during military service." R. at 131-35.

The RO then again denied Mr. Skaar's claim, citing the results of the August 2016 revised dose

estimate. R. at 113-14. Nonetheless, in September 2016, a private physician opined that Mr. Skaar's

leukopenia was "a result of exposure to ionizing radiation/plutonium." R. at 38.

Mr. Skaar then returned to the Board, which, on April 14, 2017, again denied his claim.

See R. at 2-12. The Board concluded VA's May 2012 dose estimate opinion lacked probative value

"as it was based on an inaccurate dose estimate." R. at 10. But the Board found the August 2016

dose estimate "highly probative" because it "was based on a review of the entire record," while

Mr. Skaar's private medical opinions were not as probative because "none offered any rationale

for their statements." R. at 10-11. Mr. Skaar then appealed to this Court, and filed the pending

motion for class certification. The Secretary moved to stay proceedings in this matter pending our

resolution of Monk III, a request we denied. This matter was assigned to a panel of the Court for

decision on the merits but, given the novelty of the issue, the motion for class certification was

submitted to the full Court for decision.

Mr. Skaar asks us to certify a class of "all U.S. veterans who were present at the 1966

cleanup of plutonium dust at Palomares, Spain[,] and whose application for service-connected

disability compensation based on exposure to ionizing radiation the VA has denied or will deny."

Motion (Mot.) for Class Certification at 1. He later clarified the proposed class encompasses (i)

"veterans whose claims for service-connected disability benefits related to exposure to ionizing

radiation at Palomares the VA has denied at any level, from the RO through the [Board], except

for those who have appealed to this Court and received a decision for which the mandate has

6

issued;" (ii) "veterans whose claims the RO or [Board] has denied and for which the deadline for

appeal has expired, as well as veterans whose claims are currently pending before a [decision

review officer] or the [Board] after an initial RO denial;" and (iii) "Palomares veterans with an

appeal currently pending before this Court[.]" Appellant's Apr. 16, 2018, Resp. at 2. The proposed

class also includes "veterans with claims that have not yet been filed at the RO," including "those

who have not filed a claim for an existing condition, including because they are aware of the VA's

history of denial of Palomares veterans' claims or the methodology used to calculate dose

exposure" and "those who have only recently developed a radiogenic condition, and those whose

claims have been delayed at the RO." Id.

The proposed class raises two claims. The first challenges VA's omission of the Palomares

cleanup from the list of radiation-risk activities in 38 C.F.R. § 3.309(d)(3)(ii) (the § 3.309 claim),

while the second centers around VA's compliance with § 3.311(c)'s command that when

adjudicating Palomares veterans' claims VA rely on dose estimates based on "sound scientific and

medical evidence" (the § 3.311 claim). Mr. Skaar's proposed class alleges VA's actions regarding

both claims are invalid under the Administrative Procedure Act and violate class members' due

process and equal protection rights. The putative class asks us to order VA to (i) recognize the

Palomares cleanup as a "radiation-risk activity;" (ii) apply dose estimate methodology that is

supported by "sound scientific and medical evidence;" and (iii) re-adjudicate the benefits claims

of those class members whose claims have already been denied.

During the Court's review of this matter, it became clear the Board had failed to address

several of Mr. Skaar's arguments regarding the § 3.311 claim. See R. at 106-07, 778-83. Thus, we

ordered a limited remand to the Agency for it to "provide a supplemental statement of reasons or

bases addressing the appellant's expressly raised argument in the first instance." Skaar v. Wilkie,

31 Vet.App. 16, 18 (2019). The Board faithfully complied with our order. In its supplemental

statement, the Board stated Mr. Skaar's arguments based on the first, lower 2012 dose estimate

"appear moot" as "the Board's April 2017 decision specifically did not rely on [the] May 2012

findings . . . since those findings were based on the April 2012" Air Force dose estimate that had

since been found to have inconsistencies. Secretary's Mar. 29, 2019, Resp. at 4.

Regarding the June 2014 revised dose estimate, the Board found that "on its face it is based

on sound scientific evidence" because it "was based on then recently re-evaluated internal

processes which were initiated to ensure a comprehensive and consistent approach to dose

estimates," and because it "considered the Veteran's previously reported intake values based on

the application of contemporary models to his bioassay data collected in the 1960's." Id. at 5. As

to whether the previous inconsistencies in the Air Force's dose methodology that plagued its earlier

April 2012 estimate still plagued the June 2014 revised dose estimate, the Board stated that "just

as it is prohibited from exercising its own independent judgment to resolve medical questions, the

Board is not in a position to exercise such independent judgment on matters involving scientific

expertise." Id. (citing Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)).

Finally, the Board explained it "is bound by regulations of the Department," and those

regulations "provide specific instructions for obtaining dose estimates." Id. at 6 (citing 38 U.S.C.

§ 7104(c); 38 C.F.R. §§ 19.5, 20.101(a) (2018)). Thus, "[w]ithout an independent dose estimate,

and without a rational basis to reject the competent findings of the Air Force," the Board had no

7

evidentiary basis on which to grant service connection. Id. at 5. Armed with a record sufficient for

the Court to consider the class certification motion, we turn to that endeavor now.

II. ANALYSIS

First, we confront a threshold issue. We must decide whether Mr. Skaar has the requisite

standing to assert the claims on which he seeks to represent a class. We conclude he lacks standing

to bring the § 3.309 claim, but has standing to pursue the § 3.311 claim.

We then assess whether we have the power to use the class action device as a matter of

law. We conclude we do. We then consider whether, as a normative matter and given our status as

an appellate court with the power to issue precedential opinions, we will exercise our discretion to

certify class actions in appropriate appeals. We conclude, as we did in the petition context, class

actions have a role to play in appeals in appropriate situations.

Returning to the proposed class, we examine the proposed class definition and modify it to

exclude those claimants with adverse decisions who chose not to appeal (i.e., their claims have

expired). We then address whether we should certify the modified class as to the § 3.311 claim. In

this regard, we first make clear, as we did with petitions, see Monk III, 30 Vet.App. at 174, we will

use Federal Rule of Civil Procedure 23 as a guide for determining whether class certification is

appropriate. We then conclude the modified class satisfies Rule 23(a)'s requirements and is

consistent with the functional requirements of Rule 23(b)(2). But we also recognize Rule 23 is

only a guide. We are not similarly situated to the Federal district courts, for which Rule 23 was

written. Thus, we consider whether our status as an appellant court (both in terms of the use of

precedential opinions and the challenges we may face in managing a class action) counsels against

certification. We conclude, in the context of this case, our appellate role does not counsel against

certification. But we also hold we will presume class actions should not be certified because of our

ability to render binding precedential decisions. Claimants seeking class certification can rebut this

presumption by showing by a preponderance of the evidence that a class action is "superior to

other available methods for fairly and efficiently adjudicating the controversy" before we will

exercise our discretion in certifying a class.

Having determined class certification is appropriate, we next consider appointment of class

counsel. Following the guidance of Federal Rule of Civil Procedure 23(g), we appoint Michael

Wishnie, Esq., of the Jerome N. Frank Legal Service Organization at Yale Law School as class

counsel.

Our final consideration concerns whether class members may elect to opt out of this action

and what notice, if any, the class should receive of our certification decision. In line with the

overwhelming weight of Federal jurisprudence, we hold the nature of this class is such that opt out

rights are not required. And, because class members may not opt out, there is no need to provide

individualized notice of certification. However, we conclude generalized notice of class

certification designed to reach as many class members as possible is appropriate and order the

parties to develop a joint plan for effecting such notice.

8

Having summarized our holdings, we now address each point in detail in the balance of

this order.

A. Standing

"[S]tanding is a threshold inquiry in all actions," including class actions.2 Allen v. Wright,

468 U.S. 737, 750 (1984). "In an era of frequent litigation, class actions, sweeping injunctions with

prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more

careful to insist on the formal rules of standing, not less so." Ariz. Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 146 (2011). "Standing is one of the keys necessary to open the door to the

federal courthouse." Matte v. Sunshine Mobile Homes, Inc., 280 F. Supp. 805, 826 (W.D. La.

2003). The appellant has the burden of showing standing. See Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). "That a suit may be a class action . . . adds nothing to the question of standing,

for even named plaintiffs who represent a class 'must allege and show that they personally have

been injured, not that injury has been suffered by other, unidentified members of the class to which

they belong and which they purport to represent.'" Simon v. E. Ky. Welfare Rights Org., 426 U.S.

26, 40 n.20 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)). "[S]tanding cannot be

acquired through the back door of a class action." Allee v. Medrano, 416 U.S. 802, 829 (1974)

(Burger, C.J., concurring in part and dissenting in part). "If the individual plaintiffs lack standing,

the court need never reach the class action issue." Hawecker v. Sorensen, No. 1:10-cv-00085

OWW JLT, 2011 WL 98757, at *2 (E.D. Cal. Jan. 12, 2011).

Standing requires the appellant show (1) an injury-in-fact; (2) traceability; and (3)

redressability. See Defs. of Wildlife, 504 U.S. at 560-61; see also Friends of the Earth, Inc. v.

Laidlow Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). An injury-in-fact is one that is

"concrete," "particularized," "not abstract," and "actual or imminent." Defs. of Wildlife, 504 U.S.

at 560-61. Claimants cannot simply "allege a bare procedural violation, divorced from any concrete

harm" to satisfy the injury requirement. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016).

Standing is determined on a claim-by-claim basis. See, e.g., McGuire v. BMW of N. Am., LLC, No.

13-7356 (JLL), 2014 WL 2566132, at *6 (D.N.J. June 6, 2014). In class actions with multiple

claims, at least one named representative must have standing with respect to each claim. See

Keepseagle v. Veneman, No. Civ.A.9903119EGS1712, 2001 WL 34676944 (D.D.C. Dec. 12,

2001); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Without it, the

claims must be dismissed. See, e.g., King Cty. v. IKB Deutsche Industriebank AG, Nos. 09 Civ.

8387(SAS), 09 Civ. 8822(SAS) 2010 WL 2010943 (S.D.N.Y. May 18, 2010). Accordingly, we

separately analyze Mr. Skaar's standing to challenge both §§ 3.309 and 3.311.

1. Mr. Skaar lacks standing to pursue the § 3.309 claim on behalf of the class.

The § 3.309 claim alleges VA's omission of the Palomares incident from its list of

recognized radiation-risk activities under § 3.309 is arbitrary and capricious, violates the

Administrative Procedure Act, and is unconstitutional. Section 3.309 establishes a presumption of

service connection for veterans who have (i) a listed radiogenic disease (ii) resulting from a

2

This Court has adopted Article III of the Constitution's case-or-controversy requirement. See Mokal v.

Derwinski, 1 Vet.App. 12, 13 (1990).

9

recognized radiation-risk activity. So, for Mr. Skaar to show an injury-in-fact he must demonstrate

VA's exclusion of Palomares from the regulation's list of radiation-risk activities harmed him in a

concrete and particularized way. See Defs. of Wildlife, 504 U.S. at 560-61. But the Board decision

before us denied service connection for leukopenia, which is not one of § 3.309's enumerated

radiogenic conditions. Thus, if we were to grant the requested relief as to this claim, Mr. Skaar

would not benefit from the regulation's presumption. Mr. Skaar attempts to sidestep this by arguing

Palomares' recognition as a radiation-risk activity would entitle him to enroll in VA's Ionizing

Radiation Registry (IRR). This program provides certain health screening benefits for veterans

exposed to ionizing radiation. See VHA Directive 1301 (Apr. 6, 2017).

We hold Mr. Skaar lacks standing to challenge § 3.309 because he would not benefit from

the relief requested as his condition, leukopenia, is not a listed radiogenic condition under that

regulation. Thus, the inclusion of Palomares as a radiation-risk activity, while it may assist many

unnamed class members, would not entitle him to § 3.309's presumption of service connection.

Further, any harm Mr. Skaar has suffered from not having access to the IRR is distinct from the

alleged harm suffered by veterans with qualifying radiogenic diseases. The unavailability of IRR

enrollment also fails to meet the proposed class definition. Mr. Skaar seeks to represent "all U.S.

veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain[,] and whose

application for service-connected disability compensation based on exposure to ionizing radiation

the VA has denied or will deny." Mot. for Class Certification at 1. But IRR enrollment, to the

extent Mr. Skaar has been denied it and to the extent it represents a "benefit," is not an "application

for service-connected disability compensation" and, thus, cannot serve as the basis for Mr. Skaar's

standing to represent the proposed class as to the § 3.309 claim.

"It is not enough that the conduct of which the plaintiff complains will injure someone. The

complaining party must also show that he is within the class of persons who will be concretely

affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by

virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to

which he has not been subject." Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (emphasis in original).

But see Gratz v. Bollinger, 539 U.S. 244, 262-63 (2003) (declining to answer whether respondent,

who was an undergraduate transfer student, had standing to represent a class that included both

undergraduate transfer students and freshmen or whether the issue was more properly analyzed

under Rule 23's typicality analysis). Mr. Skaar may very well be correct he has suffered some type

of harm from not having access to the IRR, but his proper remedy for that particular injury is to

pursue relief from VA, not this Court. Thus, we dismiss Mr. Skaar's challenge to VA's omission

of Palomares from § 3.309's list of radiation-risk activities as he lacks standing to bring the claim.

See Rosinski v. Shulkin, 29 Vet.App. 183, 190-92 (2018); Prado-Steiman ex rel. Prado, 221 F.3d

at 1279.

2. Mr. Skaar has standing to pursue the § 3.311 claim on behalf of the class.

However, we hold Mr. Skaar does have standing to challenge VA's reliance on the Air

Force's dose estimate methodology in deciding claims under § 3.311. First, he has suffered an

injury-in-fact. Certain qualifying radiogenic conditions not listed in § 3.309 are analyzed under

§ 3.311, which requires evidence of radiation exposure and dosages for the award of service

connection. See 38 C.F.R. § 3.311(a)(1); see also Hilkert, 12 Vet.App. at 145-49. Leukopenia is

10

not listed as a qualifying radiogenic condition. See § 3.311(b)(2). But § 3.311, unlike § 3.309,

provides that, for conditions other than those specifically listed by VA as qualifying radiogenic

diseases, "VA shall nevertheless consider the claim under the provisions of this section provided

the claimant has cited or submitted competent scientific or medical evidence that the claimed

condition is a radiogenic condition." § 3.311(b)(4). And the Board favorably found Mr. Skaar's

private medical opinions linked his leukopenia to radioactive exposure. See R. at 6. Thus, Mr.

Skaar's leukopenia qualifies for the dose estimate procedures of § 3.311.

VA regulations require dose estimates be supported by "sound scientific and medical

evidence." 38 C.F.R. § 3.311(c)(1)(i). Mr. Skaar, both individually and on behalf of the class,

argues the Air Force's dose methodology, which VA relies on in adjudicating service connection

claims by Palomares veterans, fails to meet that standard. Unlike the class claim under § 3.309, in

his class claim under § 3.311 Mr. Skaar was subject to the challenged conduct.

For claims under § 3.311, "an assessment will be made as to the size and nature of the

radiation dose or doses." § 3.311(a). For claims based on exposure other than from atmospheric

nuclear weapons testing or the military occupations of Hiroshima or Nagasaki, VA must request

"any available records concerning the veteran's exposure to radiation," such as service medical

records and "other records which may contain information pertaining to the veteran's radiation

dose in service." § 3.311(a)(2)(iii).

Mr. Skaar filed a service connection claim for leukopenia in March 2011. VA then

requested a dose estimate from the Air Force. That estimate stated Mr. Skaar's maximum total

effective dose was 4.2 rem. In May 2012, the VA Environmental Health Program found that,

because Mr. Skaar's effective dose was less than 5 rem, "it is unlikely that his leukopenia . . . can

be attributed to radiation exposure." R. at 1877. VA then denied his claim in June 2012. However,

in December 2013, the Air Force increased its assigned dose values for Palomares veterans after

determining its previous methods led to inconsistent dose estimates. VA then again denied Mr.

Skaar's leukopenia claim in March 2014, choosing not to apply the revised dose methodology to

his claim. The Air Force then again revised its assigned dose value for Mr. Skaar to 17.9 rem, a

more than quadruple increase from its previous assigned dose value. The Board then reopened Mr.

Skaar's leukopenia claim in May 2015 because of the new dose estimate and remanded the claim

to the RO, which again denied the claim. Mr. Skaar perfected an appeal to the Board, which then

yet again denied service connection. R. at 2-12. The proposed class here challenges VA's reliance

on both the Air Force's pre- and post-2013 dose estimate methodologies. See Appellant's Apr. 8,

2019, Resp. at 3.

The parties spill a great deal of ink discussing Mr. Skaar's standing to represent the class

challenge. The Secretary argues there is a crucial distinction between the pre-2013 and post-2013

methodologies.3 See Secretary's Apr. 18, 2019, Resp. at 1-3. He contends Mr. Skaar lacks standing

to challenge the pre-2013 methodology because that method was derived from air sampling, while

his dose estimates came from urine sampling. Id. at 2. Mr. Skaar counters that "[t]he pre-2013 and

3

As stated above, the Air Force adopted the LA Report in 2001. See R. at 1580-81; 3508-511. Thus, and

because Mr. Skaar challenges only VA's reliance on dose estimates prepared using the Report's methodology, he does

not have standing to challenge denials of claims due to ionizing radiation exposure from the Palomares cleanup that

were based on dose estimates pre-dating 2001.

11

post-2013 distinction is meaningless because [he] challenges the VA's reliance on the LA Report

as a whole." Appellant's Apr. 23, 2019, Resp. at 4. In his view, "the LA Report's original sin is that

it excluded the urine samples with the highest plutonium measurements." Id. Mr. Skaar alleges

this exclusion of the highest dose estimates applies equally to both the pre-2013 and post-2013

methodologies.

Whether one considers the question of differences in the pre- and post-2013 methodologies

as one of constitutional standing or under Rule 23's typicality analysis is largely one of semantics

here, involving significant overlap. Thus, we analyze the pre- and post-2013 distinction in the

context of both standing and typicality.

First, Mr. Skaar has standing to challenge the post-2013 methodology because the Air

Force's post-2013 methodology excluded the highest measurements recorded. In a December 2013

document, the Air Force stated it was revising Palomares dose estimates by setting the estimated

dose intake for the High 26 group as "their established intake estimates," and by using, for all other

Palomares veterans, the lowest dose intake from the High 26. R. at 1580-81. But Mr. Skaar

contends the established plutonium intakes for the High 26 are artificially deflated by the earlier

decision to exclude "unrealistically high" measurements taken on-site. Thus, the Air Force's

revised methodology does nothing to correct the exclusion of the urine samples with the highest

plutonium measurements as to Mr. Skaar, and he has sufficiently shown an injury-in-fact as to the

post-2013 methodology. Appellant's Apr. 23, 2019, Resp. at 4.

Second, debating whether Mr. Skaar has standing to represent those class members solely

challenging VA's reliance on pre-2013 Air Force dose estimates is almost certainly an academic

exercise. As discussed in the balance of this order, we will certify a modified class of claimants

that excludes those whose claims related to ionizing radiation exposure from the Palomares

cleanup have been denied by VA or this Court and those whose appeals windows for those denials

have expired. Put differently, our decision affects only claimants who will file claims after the date

of this order or those whose claims are currently before the Court or pending before VA. That

means it's exceedingly unlikely there are any remaining class members who will only have a dose

estimate based solely on the pre-2013 methodology.

But, even if there are class members whose claims were denied solely on the basis of the

Air Force's pre-2013 methodology, Mr. Skaar has sufficient standing to represent them. He has

shown injury-in-fact from the pre-2013 methodology, which was derived from the LA Report. See

R. at 1580-81. This methodology was applied to Mr. Skaar in the form of the May 2012 advisory

opinion implementing the LA Report's dose estimate methodology, which specifically "excluded

data from the on-site [urine] samples and attributed more significance to samples collected at later

dates for the High 26 Group," of which Mr. Skaar was a member. R. at 2795. The Secretary argues,

however, the exclusion of the urine samples from the pre-2013 methodology is irrelevant here

because, in the decision on appeal, the Board expressly discounted the findings of the May 2012

advisory opinion as they were "based on an inaccurate dose estimate." R. at 10. But it is unclear

how this makes any difference. It is undisputed that the dose estimate methodology under § 3.311,

whether it be from pre- or post-2013, excluded certain urine dose samples. If Mr. Skaar is

successful in showing this exclusion is not based on "sound scientific evidence" as required by

VA's own regulations, then he will have suffered an injury-in-fact.

12

Mr. Skaar's injury is also "fairly traceable to the challenged conduct of the defendant."

Spokeo, 136 S. Ct. at 1547. VA's own regulations require it to use "sound scientific evidence" in

adjudicating radiation exposure claims, see 38 C.F.R. § 3.311, and VA is free to request dose

estimates from private entities or to establish its own dose estimates procedures. Finally, Mr.

Skaar's injury is "likely to be redressed by a favorable judicial decision." Spokeo, 136 S. Ct. at

1547. An order from us holding the Secretary is in noncompliance with § 3.311 and directing him

to comply with the law would immediately give Mr. Skaar relief because he could not again be

subject to the same allegedly unlawful process. Thus, Mr. Skaar has standing to bring the § 3.311

claim.

Having concluded Mr. Skaar has standing to challenge § 3.311 but not § 3.309, we have

occasion to modify Mr. Skaar's proposed class definition to reflect our legal conclusions. See

Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 757 (7th Cir. 2014) (courts should modify proposed

class definitions that are slightly overbroad rather than deny certification outright); Schorsch v.

Hewlett-Packard Co., 417 F.3d 748, 750 (7th Cir. 2005) ("Litigants and judges regularly modify

class definitions . . . ."); In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004); Robidoux

v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) ("A court is not bound by the class definition proposed

in the complaint and should not dismiss the action simply because the complaint seeks to define

the class too broadly."). But first, we must consider whether, as a matter of law, we have the power

to certify class actions in the appeal context at all. We conclude we do.

B. The Power To Certify Class Actions in the Appeal Context

Before the passage of the Veterans' Judicial Review Act (VJRA), Pub. L. 100-687,

102 Stat. 4105 (1988), veterans were free to aggregate challenges to VA regulations in the limited

context in which judicial review was available. See, e.g., Johnson v. Robison, 415 U.S. 361 (1974);

Wayne State Univ. v. Cleland, 590 F.2d 627 (6th Cir. 1978); Giusti-Bravo v. U.S. Veterans Admin.,

853 F. Supp. 34 (D.P.R. 1993); Nehmer v. U.S. Veterans' Admin., 118 F.R.D. 113 (N.D. Cal.

1987); In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980). Yet, until

recently this Court did not recognize its authority to entertain class actions. See Monk II, 855 F.3d

at 1320-21; Harrison, 1 Vet.App. at 439. In Monk II, the Federal Circuit disagreed, reasoning there

was "no persuasive indication that Congress intended to remove class action protection for veterans

when it enacted the VJRA." 855 F.3d at 1320 (emphasis in original). "Rather, Congress gave the

Veterans Court express authority to prescribe rules of practice and procedure for its proceedings."

Id. Thus, "[o]n the basis of th[is] express statutory authority . . . , the Veterans Court may prescribe

procedures for class actions or other methods of aggregation." Id.

Although Monk II concerned a petition and this is an appeal, nothing in that decision

indicates our authority to certify classes is limited to the petition context. Indeed, when describing

the bases on which we had the power to certify classes, the Federal Circuit stated: "We hold that

the Veterans Court has such authority [to certify and adjudicate class action cases] under the All

Writs Act, other statutory authority, and the Veterans Court's inherent powers." Monk II, 855 F.3d

at 1318. Although the reference to the All Writs Act arguably could be confined to the context of

a petition (although that is not necessarily the case), the other two sources of authority to certify

classes are not so limited. Moreover, the Federal Circuit specifically discussed our authority in the

13

context of an appeal. See id. at 1320. To be sure, that court had no occasion to rule on the question

of class actions in the appeal context because Monk II concerned a petition. Nevertheless, its

analysis is instructive. At a minimum, our inherent authority supports the use of the class action

device as does our ability to craft rules of practice and procedure. See 38 U.S.C. § 7264(a). There

is no principled distinction between the authority the Federal Circuit recognized for petitions from

appeals. Thus, faithfully applying the Federal Circuit's logic in Monk II, we hold we possess the

authority to certify class actions in the appeal context.

Having concluded we possess the power to aggregate claims and certify class actions in

the appeal context, we now address whether we will exercise that power. We hold that, in

appropriate circumstances, we will.

C. The Utility of Class Actions in the Appeal Context

Class actions are "an exception to the usual rule that litigation is conducted by and on behalf

of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). They

are "a procedural device intended to advance judicial economy by trying claims together that lend

themselves to collective treatment." Blaz v. Belfer, 368 F.3d 501, 504 (5th Cir. 2004). And they

have a long history, originating with English "bills of peace," which allowed courts to consolidate

numerous persons with the same claim against the same defendant. See Benjamin Kaplan,

Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil

Procedure, 81 HARV. L. REV. 356, 376 (1967). They have been an established part of Federal

practice since the original version of Rule 23 was promulgated in 1937 and established three types

of class actions plaintiffs could bring. See FED. R. CIV. P. 23(b) advisory committee's note to 1937

adoption. The Rule was revised to its current form in a landmark 1966 amendment laying out the

procedural "measures which can be taken to assure the fair conduct of [class] actions." FED. R.

CIV. P. 23(b) advisory committee's note to 1966 amendment; see also In re Gen. Motors Corp.

Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995).

"Class relief is 'peculiarly appropriate' when the 'issues involved are common to the class

as a whole' and when they 'turn on questions of law applicable in the same manner to each member

of the class." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Yamasaki, 442 U.S.

at 700-01). "[T]he class action device saves the resources of both the courts and the parties by

permitting an issue potentially affecting every" class member "to be litigated in an economical

fashion under Rule 23." Yamasaki, 442 U.S. at 701.

Class actions can also be an effective force for institutional change. As one court has

observed, "[u]nless we can use the class action and devices built on the class action, our judicial

system is not going to be able to cope with the challenges of [] mass repetitive wrongdoing."

Cimino v. Raymark Indus., Inc., 751 F. Supp. 649, 652 (E.D. Tex. 1990), aff'd in part, vacated in

part on other grounds by 151 F.3d 297 (5th Cir. 1998). The Federal Circuit has observed that

"[c]lass actions can help [this Court] . . . by promoting efficiency, consistency, and fairness, and

improving access to legal and expert assistance by parties with limited resources." Monk II,

855 F.3d at 1320. Further, "[c]lass actions may help [this Court] consistently adjudicate cases by

increasing its prospects for precedential opinions," help "prevent the VA from mooting claims

14

scheduled for precedential review," and "could be used to compel correction of systemic error and

to ensure that like veterans are treated alike." Id. at 1320-21.

We agree with the Federal Circuit's views on the utility of the class action device. Although

that court made its comments in the petition context, the concepts of "efficiency, consistency, and

fairness" apply equally to appeals. It is true this Court has the power to issue precedential decisions

that, in some measure, mimic the effect of a class action. However, that power does not mean there

is no use for the class action device. We conclude although our ability to issue binding precedent

is a factor we should consider when deciding whether to certify a class (a matter we return to

below), that ability does not counsel in favor of categorically rejecting the use of this procedural

device.

Thus, as we have the power to certify class actions and will exercise our discretion to do

so in appropriate cases, we now consider whether this matter is appropriate for certification. To do

so requires precisely defining the proposed class. See FED. R. CIV. P. 23(c)(1)(B) (class action

orders "must define the class and the class claims, issues, or defenses"). To do so we must have "a

readily discernible, clear, and precise statement of the parameters defining the class or classes to

be certified" that "provid[es] the parties with clarity and assist[s] class members in understanding

their rights and making informed opt-out decisions." Marcus v. BMW of N.A., LLC, 687 F.3d 583,

591 (3d Cir. 2012).

D. The Proposed Class Composition

Mr. Skaar asks us to certify a class of "all U.S. veterans who were present at the 1966

cleanup of plutonium dust at Palomares, Spain[,] and whose application for service-connected

disability compensation based on exposure to ionizing radiation the VA has denied or will deny."

Mot. for Class Certification at 1. Combined with his later clarification of the class definition, the

proposed class contains five subgroups.4 They are the following:

x Past Claimants: those Palomares veterans whose claims based on ionizing radiation

exposure were denied before reaching the Board but who did not perfect an appeal of that

denial;

x Expired Claimants: those Palomares veterans whose claims based on ionizing radiation

exposure the Board has denied but whose appeal windows to this Court have expired

without the filing of a Notice of Appeal;

x Present Claimants: those Palomares veterans whose claims based on ionizing radiation

exposure the Board has denied and whose appeal windows to this Court have not yet

expired or who have already appealed an adverse decision to this Court;

x Present-Future Claimants: those Palomares veterans who have filed claims based on

ionizing radiation exposure that remain pending before VA at any level and that VA will

deny; and

4

We separate the class into subgroups merely for purposes of analyzing our jurisdiction as to each subgroup

and do not divide the class into formal subclasses. See FED. R. CIV. P. 23(c)(5) (permitting district courts to divide a

class into subclasses).

15

x Future-Future Claimants: those Palomares veterans who have developed a radiogenic

condition but have not yet filed claims based on ionizing radiation exposure.

The proposed class composition depends on whether we have jurisdiction over each

subgroup. First, we clearly have jurisdiction over the Present Claimants because they possess final

Board decisions and either their 120-day windows to appeal those decisions to this Court have not

yet expired or these claimants have already appealed within the 120-day time period. See 38 U.S.C.

§§ 7252(a), 7266(a). We consider the remaining subgroups in turn.

1. The Present-Future and Future-Future Claimants

The Present-Future and Future-Future Claimants pose a unique jurisdictional issue. Neither

subgroup has had final Board decisions dispose of its claims. Indeed, the Future-Future Claimants

have not yet even filed disability compensation claims. We must decide whether our jurisdictional

statute prohibits the inclusion of class members without a final Board decision as we have "an

independent obligation to ensure that [we] do not exceed the scope of [our] jurisdiction."

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Relying on the Supreme

Court's holding in Bowen v. City of New York, 476 U.S. 467 (1986), we conclude our jurisdictional

statute does not prohibit their inclusion.

i. There is no indication Congress intended veterans to receive fewer procedural protections

under the VJRA than they enjoyed before its enactment.

"Courts created by statute," like ours, "can have no jurisdiction but such as the statute

confers." Christianson v. Indus. Operating Corp., 486 U.S. 800, 818 (1988). Subject-matter

jurisdiction "can never be waived or forfeited." Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). "A

statute affecting federal jurisdiction must be construed both with precision and with fidelity to the

terms by which Congress has expressed its wishes." Kucana v. Holder, 558 U.S. 233, 252 (2010).

Guided by the Federal Circuit, we hold that, pursuant to our statutory authority under 38 U.S.C.

§§ 7252 and 7261, we have the authority to certify class actions that include veterans who have

not yet received a final Board decision and those who have not yet filed a claim. See Monk II,

855 F.3d at 1318.

We have only one source of jurisdiction: 38 U.S.C. § 7252. See Henderson, 562 U.S. at

434. It gives us "exclusive jurisdiction to review [Board] decisions," allowing us to "affirm,

modify, or reverse" Board decisions and "remand the matter, as appropriate." 38 U.S.C. § 7252(a).

Essentially, a final Board decision operates as the jurisdictional "trigger" that gives us the authority

to hear a particular appeal. See Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (our Court's

"jurisdiction is premised on and defined by the Board's decision concerning the matter being

appealed"); Wick v. Brown (In re Wick), 40 F.3d 367, 373 (Fed. Cir. 1994) (a Board decision is a

"statutory prerequisite for [this Court's] jurisdiction"). 38 U.S.C. § 7261 then lays out our scope of

review in cases in which we already possess jurisdiction under section 7252 and "does not provide

an independent basis for jurisdiction." Wick, 40 F.3d at 371; see also Dixon v. McDonald, 815 F.3d

799, 803 (Fed. Cir. 2016). Instead, this provision delineates what types of relief we may provide.

See 38 U.S.C. §§ 7252(b) ("The extent of [this Court's judicial] review shall be limited to the scope

provided in section 7261 . . . ."), 7261(a)(1)-(4) (laying out the various actions this Court can take

16

when deciding appeals). Both statutes play important, but differing roles. First, for jurisdiction to

be proper in a given matter, it must lie under section 7252. Then, once jurisdiction is proper,

section 7261 informs us what, if any, actions we may take.

In Harrison, we decided we lacked the authority to hear class actions because, among other

reasons, section 7252 limited our jurisdiction to review of Board decisions. 1 Vet.App. at 439. But

in Monk II, the Federal Circuit addressed that, stating Harrison "reflect[ed] a concern that the

Veterans Court would exceed its jurisdiction if, for example, it certified a class that included

veterans that had not yet received a Board decision or had not yet filed a notice appealing a Board

decision." 855 F.3d at 1320. The Federal Circuit "disagree[d] that [our] authority is so limited,"

explaining that 38 U.S.C. § 7264(a), which authorizes us to create the procedures necessary to

exercise our jurisdiction, allows us to "prescribe procedures for class actions or other methods of

aggregation." Monk II, 855 F.3d at 1320. The Federal Circuit also noted that "[b]efore the VJRA,

veterans seeking to enforce veterans benefit statutes were able to file class actions in some

circumstances." Id. at 1319. In essence, the Federal Circuit's holding was supported by the notion

that veterans should be afforded more procedural protections after the VJRA's enactment, not less.

Thus, absent any express indication from either Congress or the Federal Circuit that

veterans in the context of an appeal should be afforded less procedural protections than were

available to them before the VJRA's enactment, rather than more, we will not place such a

restriction on this most favored class of citizens and their ability to pursue their disability benefits

claims in the manner and fashion of their choosing. See Henderson, 562 U.S. at 441 ("We have

long applied 'the canon that provisions for benefits to members of the Armed Services are to be

construed in the beneficiaries' favor.'" (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 220-21

n.9 (1991))).

The dissent asserts that section 7252(a) "contains the nonwaivable, jurisdictional elements

that a veteran must have both filed a claim and received a Board decision." Post at 49, 50. The

dissent goes on to reason that "[t]he majority's focus on determining whether to waive the

requirement of a Board decision is at best premature because it did not explain why it determined

that our jurisdictional statute has waivable components." Id. But, the dissent misreads our decision.

We do not today hold that the requirement of a final Board decision is waivable. Rather, we hold

that because Mr. Skaar, as class representative, has obtained a final Board decision pursuant to

section 7252, the jurisdictional door has been opened, and we may use our other authorities, as

explained in Monk II, to aggregate Mr. Skaar's claims with those of the remaining class members.

Our reasoning can be analogized to a magistrate judge's exercise of jurisdiction over a class

action. 28 U.S.C. § 636 is jurisdictional in nature, and, in sum, provides that a magistrate judge

can exercise jurisdiction over proceedings in civil matters with the consent of the parties. Roell v.

Withrow, 538 U.S. 580, 585-86 (2003). Yet, even though section 636 is jurisdictional in nature, a

magistrate can enter judgment in a class action without each class member giving consent. Koby

v. ARS Nat'l Servs., Inc., 846 F.3d 1071, 1078-79 (9th Cir. 2017); Day v. Persels & Assocs., LLC,

729 F.3d 1309, 1324-25 (11th Cir. 2013); Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170,

180-81 (3d Cir. 2012); Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d 266, 268-69 (7th

Cir. 1998). Thus, the jurisdictional mandates of section 636(c) are satisfied when only the named

plaintiff in a class action has consented to proceed before a magistrate.

17

The courts to have considered the issue of consent in a class action have not "waived" the

jurisdictional requirement of consent. Rather, they have held that the jurisdictional requirement is

satisfied for all class members through the named plaintiff providing consent. Williams, 159 F.3d

at 269 ("[T]he named representative . . . is the 'party' to the lawsuit who acts on behalf of the entire

class, including with regard to the decision to proceed before a magistrate judge. This is an inherent

part of representational litigation."). We find that Mr. Skaar's satisfaction of our jurisdictional

requirement of a final Board decision, see 38 U.S.C. § 7252(a), is sufficient to vest this Court with

subject matter jurisdiction, much in the same way a named plaintiff's consent to proceed before a

magistrate is sufficient to grant the magistrate jurisdiction to enter final judgment as to all class

members.

ii. We may certify classes that include claimants without final Board decisions.

The Secretary argues we lack jurisdiction to certify a class of veterans that includes those

without a final Board decision "[b]ecause a Board decision is a jurisdictional prerequisite to review

in this Court[.]" Secretary's Resp. to Mot. for Class Certification at 5. Thus, in his view, we could

never certify a class of veterans without first ensuring there is a final Board decision as to each

veteran in the class. In support, he relies on three Social Security cases: Weinberger v. Salfi,

422 U.S. 749 (1975); Yamasaki, 442 U.S. at 682; and City of New York, 476 U.S. at 467. We

examine each in turn.

In Salfi, the District Court certified a class of claimants challenging a Social Security

regulation that required a marriage to have existed at least 9 months before the death of a wage

earner for a surviving spouse to receive benefits. The District Court held jurisdiction was proper

under 28 U.S.C. § 1331 (the general Federal question jurisdictional statute), certified the class, and

held the regulation unconstitutional. On direct appeal, the Supreme Court reversed, finding

jurisdiction lay under 42 U.S.C. § 405 instead. That statute requires a final decision after a hearing

by the Secretary of Health and Human Services before claimants can appeal adverse Social

Security decisions to a district court. The Court concluded the District Court erred by certifying a

class that included claimants who had not yet filed an application for benefits because "the [class]

complaint was deficient in that it contain[ed] no allegations that [claimants] ha[d] even filed an

application with the Secretary, much less that he has rendered any decision, final or otherwise."

But, the Court went on to also hold that the District Court did not err in certifying a class of

claimants who had filed a benefits application but had not yet been afforded a hearing—a

nonjurisdictional requirement of § 405(g). The Court reasoned that the exhaustion requirement

was not necessary when the issue was one that would be futile to bring before an agency. When

read in isolation, Salfi is clearly disadvantageous to the proposed class members who do not have

final Board decisions. However, as we will see, the lack of a final agency decision for each of a

proposed class's members was not a concern for the Court 11 years later in City of New York.

Although the Secretary argues Yamasaki weighs against our having jurisdiction over the

proposed class, we find it inapposite. There, the Supreme Court was confronted with a nationwide

class of Social Security claimants whom the Government had overpaid. The Government sought

to recoup those overpayments by withholding the respondents' future benefits. The respondents

requested reconsideration or waiver of the recoupment. Two district courts then certified a

18

nationwide class of claimants and granted injunctive relief requiring the Agency to provide every

class member with a pre-recoupment oral hearing. On appeal, the Court of Appeals for the Ninth

Circuit affirmed. The Supreme Court needed to determine, among other things, whether

section 405(g) "permits a federal district court to certify a nationwide class and grant injunctive

relief." The Court concluded it did, reasoning Congress would have explicitly proscribed class

actions in the Social Security context if it had intended to do so. Yamasaki is relevant here only to

the extent the Court discusses the relief granted, not the lower courts' jurisdiction. The Court held

"[w]ith respect to that relief, the classes certified were plainly too broad" as both classes "included

persons who had not filed requests for reconsideration or waiver in the past and would not do so

in the future." But that discussion was not key to the Court's holding, as it explained: "The

Secretary's objection to the class definition is well taken, but it provides no basis for altering the

relief actually granted in this case." 442 U.S. at 682. Thus, Yamasaki sheds no light on the question

before us.

City of New York, however, bears a striking similarity to the matter before us. There, the

Supreme Court considered a class of claimants challenging an internal policy of the Social Security

Administration that operated to deny otherwise deserving claimants benefits to which they were

entitled. "The gravamen of respondents' complaint was that petitioners had adopted an unlawful,

unpublished policy under which countless deserving claimants were denied benefits." The District

Court found the Government's internal policy invalid and certified a class that included both (i)

claimants who had not appealed Social Security's decision within the required 60-day timeframe,

thus requiring equitable tolling, and (ii) claimants who had not received a final agency decision.

The Court of Appeals for the Second Circuit affirmed. 476 U.S. at 467.

The Supreme Court grappled with two issues in City of New York. The first, which we

discuss elsewhere in this order, concerned whether the District Court erred by equitably tolling the

statute of limitations for class members who had not timely appealed the Government's decision.

The second issue, however, concerned whether the District Court lacked jurisdiction to certify a

class that included claimants who had not received a final agency decision, as required by

section 405(g). In Salfi, the Court called this requirement "central to the requisite grant of subject-

matter jurisdiction" and, thus, claimants without a final decision could not be certified as part of a

class. 422 U.S. at 764. But this time, in City of New York, the Court concluded section 405(g) was

not a bar to class certification, even for claimants who had not received a final decision. This was

so because (i) the class claims were "collateral to the claims for benefits that class members had

presented administratively;" (ii) "the claimants . . . would be irreparably injured were the

exhaustion requirement now enforced against them;" and (iii) "[t]he purposes of exhaustion would

not be served by requiring these class members to exhaust administrative remedies." The Court

further explained the class

stand[s] on a different footing from one arguing merely that an agency incorrectly

applied its regulation. Rather, the District Court found a systemwide, unrevealed

policy that was inconsistent in critically important ways with established

regulations. Nor did this policy depend on the particular facts of the case before it;

rather, the policy was illegal precisely because it ignored those facts. . . . Under

these unique circumstances, there was nothing to be gained from permitting the

compilation of a detailed factual record, or from agency expertise.

19

In addition, the relief afforded by the District Court is fully consistent with

the policies underlying exhaustion. The court did not order that class members be

paid benefits. Nor does its decision in any way interfere with the agency's role as

the ultimate determiner of eligibility under the relevant statutes and regulations.

Indeed, by ordering simply that the claims be reopened at the administrative level,

the District Court showed proper respect for the administrative process. It did no

more than the agency would have been called upon to do had it, instead of the

District Court, been alerted to the charge that an undisclosed procedure was illegal

and had improperly resolved innumerable claims.

476 U.S. at 485.

The Court also found its decision in Mathews v. Eldridge dispositive. There, the Court held

"cases may arise where a claimant's interest in having a particular issue resolved promptly is so

great that deference to the agency's judgment is inappropriate." 424 U.S. 319, 330 (1976). The

Court in City of New York explained that "[t]wo factors influenced the Court's judgment that

Eldridge was a case in which deference to the [A]gency's determination of finality was not

necessary. First, the constitutional challenge brought there was 'entirely collateral to [a] substantive

claim of entitlement.' Second, the claim rested 'on the proposition that full relief cannot be

obtained' [as a result of the district court's decision]." 476 U.S. at 483 (citation omitted) (quoting

Eldridge, 424 U.S. at 330-31). The City of New York Court was "especially sensitive to this kind

of harm where the Government seeks to require claimants to exhaust administrative remedies

merely to enable them to receive the procedure they should have been afforded in the first place."

Id. at 484. The purposes of exhaustion include (i) permitting evidentiary development; (ii) allowing

the agency to bring its expertise to bear on an issue before judicial review; and (iii) giving due

respect to the agency's established procedures. City of New York, 476 U.S. at 486.

City of New York tells us an administrative exhaustion-of-remedies requirement can be

waived where (i) the challenged conduct is collateral to a claim for benefits; (ii) enforcing the

exhaustion requirement would irreparably harm the claimant; and (iii) the purposes of exhaustion

would not be served by its enforcement. Turning to the instant appeal, we hold we have jurisdiction

to certify a class action that includes members who do not have a final Board decision provided (i)

the challenged conduct is collateral to the class representative's administratively exhausted claim

for benefits—i.e., the class representative has obtained a final Board decision; (ii) enforcing the

exhaustion requirement would irreparably harm the class; and (iii) the purposes of exhaustion

would not be served by its enforcement.

Applying this test here, we have jurisdiction over the proposed class and will not require

exhaustion of administrative remedies by each and every class member. First, jurisdiction over Mr.

Skaar's appeal is proper under section 7252(a), for he has exhausted his administrative remedies,

and the challenged conduct is collateral to both his and the unnamed class members' benefits claims

because granting the requested relief would not be an "order that class members be paid benefits."

City of New York, 476 U.S. at 486. "[A] claim is collateral when the 'plaintiffs' claims are

essentially to the policy itself, not its application to them, nor to the ultimate substantive

determination of their benefits.'" Stengel v. Callahan, 983 F. Supp. 1154, 1159 (N.D. Ill. 1997)

20

(quoting Johnson v. Sullivan, 922 F.2d 346, 353 (7th Cir. 1990)). Second, the alleged harm here,

if shown to be true, is precisely the type of "harm where the Government seeks to require claimants

to exhaust administrative remedies merely to enable them to receive the procedure they should

have been afforded in the first place" the Supreme Court was concerned with in City of New York.

476 U.S. at 484. And, finally, the purposes of exhaustion would not be served by enforcement of

section 7252(a)'s exhaustion requirement on the unnamed class members. The parties have

compiled and agreed on a detailed factual record containing the Board's findings and conclusions.

VA, through the Board, has brought its agency expertise to bear by providing a supplemental

statement of reasons or bases addressing Mr. Skaar's challenge to § 3.311. See generally

Secretary's Mar. 29, 2019, Resp. And, if the requested relief is granted, our order would not "in

any way interfere with the [A]gency's role as the ultimate determiner of eligibility under the

relevant statutes and regulations." See City of New York, 476 U.S. at 486. Thus, we waive the

exhaustion requirement for the Present-Future and Future-Future Claimants, permitting them to be

included in the proposed class.

Our reading of this caselaw is consistent with class action adjudication in the veterans'

benefits context before the VJRA's enactment. For example, the lack of final Board decisions was

not an impediment to pre-VJRA class certification in Nehmer. There, a district court certified a

class of veterans challenging VA's implementation of 38 U.S.C. § 354, the Dioxin and Radiation

Exposure Compensation Act, even though "[n]one of the named plaintiffs presented the claims

raised in this lawsuit to the VA, either during their individual claim adjudications or in a petition

for rulemaking[.]" The court reasoned the class members did not need to exhaust administrative

remedies because (i) although VA may have had expertise in creating its procedures, "it does not

possess particular expertise in determining what procedures adhere to the statutory mandate of the

Dioxin Act and the Administrative Procedure Act;" (ii) a full record would be available through

discovery; (iii) "the Court's hearing of the plaintiff's claims will not engender disrespect for the

[A]gency's procedures;" (iv) the likelihood of the plaintiff's success by exhausting their

administrative remedies was "low" because "the VA itself has adopted a system-wide policy; any

errors committed in adopting the policy were made by the VA itself, not an individual fact-finder;"

(v) "the class attack on the VA's procedural irregularities is distinct from any individual's attack

on their denial of benefits;" and (vi) requiring exhaustion of remedies would place a "substantial

burden" on the class members. Nehmer, 118 F.R.D. at 113. Nehmer, which predated the VJRA,

thus fits with our holding today and, again, there is "no persuasive indication that Congress

intended to remove class action protection for veterans when it enacted the VJRA." Monk II,

855 F.3d at 1320 (emphasis in original).

iii. This Court is the appropriate forum to hear challenges that are collateral to a benefits claim.

The remaining class claim here is collateral to Mr. Skaar's claim for benefits. Veterans

cannot preemptively bring such collateral claims to VA seeking only to invalidate a specific

procedure or practice. Instead, their only avenue would be to proceed to exhaust their

administrative remedies by asking the Board to provide relief it is powerless to give. See 38 U.S.C.

§ 7104(c) (Board decisions are "bound by the regulations of the Department"). Congress cannot

have intended such a result. Requiring every class member to have a final Board decision when

the Board is powerless to provide the relief sought does not comport with the principle that, when

interpreting statutory finality requirements, "[t]he prevailing rule of construction is that crucial

21

collateral claims should not be lost and that irreparable harm should be avoided." Mental Health

Ass'n of Minn. v. Heckler, 720 F.2d 965, 969 (8th Cir. 1983). If veterans cannot aggregate actions

to collaterally challenge alleged systemic wrongdoing before us, where should they seek such

review? It is not enough to say Palomares veterans instead should have petitioned for rulemaking

when the regulations at issue were drafted. See 38 U.S.C. § 553(e). If the class claim is proven,

veterans could not have known and should not be required to have known their benefits claims

would be subject to a legally invalid process. Thus, this Court is the appropriate forum to hear their

collateral challenges to benefits claims.

Having concluded the Present, Present-Future, and Future-Future Claimants are members

of the proposed class, we next consider the Expired Claimants.

2. The Expired Claimants

The Expired Claimants require a different analysis because they received final Board

decisions but did not appeal them to this Court. Mr. Skaar asks us to exercise our discretion and

waive section 7266(a)'s 120-day Notice of Appeal filing requirement, allowing their expired

benefits claims to be revived before us, aggregated as part of the proposed class, and then, if the

class prevails on the merits, returned to the Agency for readjudication. See Appellant's Mar. 21,

2018, Resp. at 3-4; see also Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam order),

overruled on other grounds by Dixon v. McDonald, 815 F.3d 799 (Fed. Cir. 2016). We decline to

do so.

As the Supreme Court explained in Henderson, section 7266(a)'s 120-day appeal window

for obtaining review before this Court "does not have jurisdictional attributes" but nonetheless was

"an important procedural rule," leaving it to us to determine whether and when waiver applied.

562 U.S. at 441. In Bove, we explained waiver is warranted "when circumstances precluded a

timely filing despite the exercise of due diligence." 25 Vet.App. at 140. Those circumstances

include (1) mental illness that renders one incapable of handling one's own affairs or other

extraordinary circumstances beyond one's control; (2) reliance on incorrect statements by VA

officials; or (3) misfilings at the regional offices or the Board. See, e.g., Brandenburg v. Principi,

371 F.3d 1362, 1364 (Fed. Cir. 2004) (misfiling); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed.

Cir. 2004) (mental illness); Bailey v. West, 160 F.3d 1360, 1365-68 (Fed. Cir. 1998) (en banc)

(incorrect statement by VA official); McCreary v. Nicholson, 19 Vet.App. 324 (2005)

(extraordinary circumstances). But this is not an exhaustive list because there are no bright line

rules in the equitable tolling context. As the Federal Circuit recently reminded us, "the

extraordinary circumstances element [of equitable tolling] necessarily requires a case-by-case

analysis and not a categorical determination." James v. White, 917 F.3d 1368, 1373 (Fed. Cir.

2019).5

The Supreme Court dealt with a similar issue in City of New York. Recall there the Court

upheld certification of a class of Social Security claimants that included those who had not

5

Given the case-by-case analysis equitable tolling requires and the prohibiting of the use of categorical rules

under James, it is difficult to see how equitable tolling matters could be resolved through aggregate action. We leave

for another day whether such a class would be appropriate, but the uncertainty on that question is an additional reason

to exclude the Expired Claimants from the class here.

22

appealed adverse benefits determinations within the relevant appeal window. 476 U.S. at 486. The

Court concluded equitable tolling was warranted. Id. at 482. This was so, the Court reasoned,

because equitable tolling "served the purpose of the [Social Security] Act where . . . 'the

Government's secretive conduct prevents plaintiffs from knowing of a violation of rights.'" Id. at

481 (quoting City of New York v. Heckler, 742 F.2d 729, 738 (1984)). But see Pittson Coal Grp.

v. Sebben, 488 U.S. 104, 123 (1988) (finding equitable tolling was not warranted where "[t]he

agency action was not taken pursuant to a secret, internal policy, but under a regulation that was

published for all to see"). To the Court, the Government's conduct in City of New York represented

one of the "cases [that] may arise where the equities in favor of tolling . . . are 'so great that

deference to the agency's judgment [of finality] is inappropriate.'" 476 U.S. at 480 (quoting

Eldridge, 424 U.S. at 330). Mr. Skaar essentially asks us to equate VA's adjudication of Palomares

veterans' claims with the secretive conduct the Supreme Court found so reprehensible in City of

New York, to extend Bove to such situations, and to allow equitable tolling here. We will not.

Including the Expired Claimants in the class offends the very notion of finality. Each of

them received Board decisions and could have challenged VA's treatment of Palomares veterans

just like Mr. Skaar, yet each chose not to. Mr. Skaar has presented no reason for us to depart from

Bove's principle that the 120-day Notice of Appeal window to this Court will only be waived "when

circumstances precluded a timely filing despite the exercise of due diligence." 25 Vet.App. at 140.

Indeed, he has never alleged the Expired Claimants were precluded from timely filing appeals to

this Court for any reason other than VA's historical practice in adjudicating claims from Palomares

veterans. But before a claimant succeeds in changing the law, VA will always (presumably)

adjudicate claims in accord with its own interpretation of that law and our legal pronouncements.

Thus, there is no principled way to distinguish the Expired Claimants here and any other claimants

who have been denied benefits, failed to appeal to this Court, and later discovered their benefits

denial was based on an incorrect reading of the law. The proper course for such claimants is to file

supplemental claims based on new and relevant evidence with VA, see 38 C.F.R. § 3.2501, not to

attempt to skirt finality and existing precedent merely because of the novel procedural nature of

this case.

The unfair substantive legal advantage the Expired Claimants would enjoy if we permitted

them to join the class is illustrated by a recent Court decision, Ray v. Wilkie, 31 Vet.App. 58 (2019).

There, a panel of the Court held VA's historical practice of refusing to define a key regulatory

phrase in 38 C.F.R. § 4.16(b) frustrated judicial review, warranting remand in cases where the

phrase is undefined. Id. at 73-74. The Ray decision surely benefited the named appellant. And it

also benefited any claims involving that regulation currently pending before the Court or VA. But

it certainly provided no retrospective relief for claimants who had been denied benefits previously

but whose appeal windows had expired.

Or consider this matter. Had Mr. Skaar filed the instant appeal, not sought class

certification, and succeeded on the merits, his appeal would be decided through precedential

decision. That decision would bind Mr. Skaar and any and all claimants with claims currently

pending before VA and the Court (the Present, Present-Future Claimaints) as well as any claimants

with claims filed in the future (Future-Future Claimants). But there would be no authority to

support that precedential decision reviving expired claims, as Mr. Skaar asks us to do here.

23

At first glance, our exclusion of the Expired Claimants may seem unduly harsh. But

claimants in the veterans benefits system do not face the same consequences of finality as litigants

in traditional civil litigation. Instead, under 38 U.S.C. § 5108(a) and 38 C.F.R. § 20.1105(a), if the

class succeeds on the merits, then the Expired Claimants can file supplemental claims based on

new and relevant evidence. The Expired Claimants may not enjoy the same effective date

protections as the other subgroups within the class, but they would still have an avenue to service

connection available to them.

In sum, that this is a class action does not and should not change this analysis as the class

action device is a procedural rule that, if we are to employ it, should not yield substantive legal

benefits. We will not now excuse the Expired Claimants' lack of diligence in pursuing their claims,

depart from precedent, and grant retrospective relief merely because this is a class action. Thus,

we decline to equitably toll the Expired Claimants' claims and modify the proposed class to exclude

them. See FED. R. CIV. P. 23(c)(5); Suchanek, 764 F.3d at 757; Schorsch, 417 F.3d at 750;

Robidoux, 987 F.2d at 937.

3. The Past Claimants

The Past Claimants were denied by VA but never reached the Board because they did not

perfect an administrative appeal. For our purposes, they are akin to the Expired Claimants in that

they have no final Board decisions. But unlike the Expired Claimants, that is not because they

failed to appeal their denials to this Court. Instead, these claimants were denied by some part of

VA other than the Board. Thus, if they are to be included in the class, they require equitable tolling

of their appellate review windows before VA. See Jaquay v. Principi, 304 F.3d 1276, 1286 (Fed.

Cir. 2002), overruled on other grounds by Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009);

Hunt v. Nicholson, 20 Vet.App. 519, 522 (2006) ("[T]he same principles that guided the Federal

Circuit in allowing equitable tolling of the deadline for filing appeals to this Court apply with equal

force to tolling the deadline for filing Substantive Appeals."). For the same reasons we decline to

equitably toll the appeal windows for the Expired Claimants, we decline to do so for the Past

Claimants as well and modify the proposed class to exclude them. There is simply no principled

distinction between the proposed class here and any other individual challenge to VA action that

warrants excusing the Past Claimants' lack of diligence in preserving their claims.

Considering Mr. Skaar lacks standing to bring the § 3.309 claim but possesses standing to

pursue the § 3.311 claim and considering our exclusion of the Expired and Past Claimants from

class certification, we must modify the proposed class definition. See FED. R. CIV. P. 23(c)(5); see

also Suchanek, 764 F.3d at 757. Thus, we modify the proposed class definition as follows: All U.S.

veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain, and whose

application for service-connected disability compensation based on exposure to ionizing radiation

VA has denied or will deny by relying, at least in part, on the findings of dose estimates requested

under 38 C.F.R. § 3.311, except those whose claims have been denied and relevant appeal

windows of those denials have expired, or those whose claims have been denied solely based on

dose estimates obtained before 2001. With this modified definition in mind, we now turn to the

class certification analysis.

24

E. Class Certification Analysis

At this time, our Court has no rule of procedure governing class actions. Indeed, as far as

we are aware, we are the only appellate court in the Nation with the authority to aggregate actions

in the first instance. But while we are unique in that regard, we are not starting with a blank slate.

As alluded to before, the Federal Rules of Civil Procedure provide for class actions in Rule 23. As

we did in the petition context, see Monk III, 30 Vet.App. at 174, we adopt Rule 23 as a guide for

class certification in the appeal context. Also, as with petitions, see id., we have at least some

limited factfinding ability in the context of determining whether a class should be certified.

"Rule 23 does not set forth a mere pleading standard. A party seeking class certification

must affirmatively demonstrate his [or her] compliance with the Rule[.]" Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350 (2011). A party seeking class certification must demonstrate by a

preponderance of the evidence the four requirements of Rule 23(a), and at least one of the

requirements of Rule 23(b).6 See N.J. Carpenters Health Fund v. Rali Series 2006-Q01 Tr., 477

F. App'x 809, 812 (2d Cir. 2012); see also Wal-Mart Stores, Inc., 564 U.S. 338 at 351 ("A party

seeking class certification . . . must be prepared to prove that there are in fact sufficiently numerous

parties, common questions of law or fact, etc.") (emphasis in original).

Rule 23(a) requires (1) the class be "so numerous that joinder of all members is

impracticable;" (2) there be common questions of law or fact; (3) the claims or defenses of the

named representative be typical of the class; and (4) the class representatives "fairly and adequately

protect the interests of the class." FED. R. CIV. P. 23(a). These requirements "effectively 'limit[]

the class claims to those fairly encompassed by the named plaintiff's claims.'" Falcon, 457 U.S. at

156 (quoting Gen. Tel. Co. of Sw. v. EEOC, 446 U.S. 318, 330 (1980)). Rule 23(b)(2), the relevant

subsection here, states class actions are appropriate when "the party opposing the class has acted

or refused to act on grounds that apply generally to the class, so that final injunctive or

corresponding declaratory relief is appropriate respecting the class as a whole." Taken together,

the Rule 23 analysis tells us "whether the named plaintiff's claim and the class are so interrelated

that the interests of the class members will be fairly and adequately protected in their absence,"

while protecting defendants' rights. Falcon, 457 U.S. at 157.

We must conduct "a rigorous analysis" of the proposed class, Falcon, 457 U.S. at 160-61,

that may "entail some overlap with the merits of the plaintiff's underlying claim" as the "class

determination generally involves considerations that are enmeshed in the factual and legal issues

comprising the plaintiff's cause of action," Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).

6

Although not explicitly listed under Rule 23, many courts have required that class membership be

"ascertainable." See, e.g., Ward v. EZCorp, Inc., 679 F. App'x. 987 (11th Cir. 2017); Leyse v. Lifetime Entm't Servs.,

LLC, 679 F. App'x 44, 47 (2d Cir. 2017); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th

Cir. 2016); Mullins v. Direct Dig., LLC, 795 F.3d 654, 659 (7th Cir. 2015); see also McKeage v. TMBC, LLC, 847 F.3d

992, 998 (8th Cir. 2017) ("A class may be ascertainable when its members may be identified by reference to objective

criteria."); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015). We need not weigh in on this debate

here because it is clear ascertainability is not required for Rule 23(b)(2) classes such as the one at issue here. See Shook

v. El Paso City, 386 F.3d 963, 972 (10th Cir. 2004) ("while the lack of identifiability is a factor that may defeat Rule

23(b)(3) class certification, such is not the case with respect to class certification under Rule 23(b)(2)"); Yaffe v.

Powers, 454 F.2d 1362, 1366 (1st Cir. 1972); Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir. 2015); Cole v. City of

Memphis, 839 F.3d 530, 541-42 (6th Cir. 2016).

25

But, crucially, "[i]n determining the propriety of a class action, the question is not whether the

plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether

the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

"Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification

stage." Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). Instead, "[m]erits

questions may be considered to the extent—and only to the extent—that they are relevant to

determining whether the Rule 23 prerequisites for class certification are satisfied." Id. As we

explain below, the proposed class meets the requirements for class certification for the remaining

class claim.

1. The proposed class is so numerous that joinder would be impracticable.

To warrant certification under the Federal Rules of Civil Procedure, the proposed class

must be "so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). This

requirement is a bit of a square peg in a round hole at this Court. In Federal district court, parties

have numerous devices they may use to "join" additional parties. See, e.g., FED. R. CIV. P. 19

(mandating joinder of certain parties), 20 (allowing joinder of certain other parties), 22

(interpleader), 24 (intervention). The rules thus make the class action a more exceptional device

with stringent requirements because there are alternative means for parties to join others in a

proceeding that do not require the binding of absent parties. We have no comparable joinder

devices.7 Thus, asking if joinder in an appeal is "impracticable" does not make the same sense here

as doing so in a district court. If anything, given the difficulty in terms of "joinder" before our

Court, the numerosity standard would likely be met on a lesser showing than in a district court. In

any event, it is met here under any standard.

Numerosity need not be proven exactly. See, e.g., Hinman v. M&M Rental Ctr., Inc.,

545 F. Supp. 2d 802, 806 (N.D. Ill. 2008). "[C]ourts generally find that the numerosity factor is

satisfied if the class comprises 40 or more members and will find that it has not been satisfied

when the class comprises 21 or fewer." Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D.

Cal. 2007); see Lightfoot v. District of Columbia, 246 F.R.D. 326, 335 (D.D.C. 2007) ("Courts in

this District have generally found that the numerosity requirement is satisfied and that joinder is

impracticable where a proposed class has at least forty members."). But "[t]here is no minimum

number of members needed for a suit to proceed as a class action." Marcus v. BMW of N. Amer.,

LLC, 687 F.3d 583, 595 (3d Cir. 2012). "[I]t is permissible for a plaintiff to make reasonable

inferences drawn from available facts" and "an 'information monopoly [by the party opposing the

class] will not stand in the way of persons seeking relief.'" Violette v. P.A. Days, Inc., 214 F.R.D.

207, 213 (S.D. Ohio 2003) (quoting Jackson v. Foley, 156 F.R.D. 538, 542 (E.D.N.Y. 1994)).

Additionally, the numerosity requirement is relaxed for classes seeking injunctive relief. Sueoka

v. United States, 101 F. App'x. 649, 653 (9th Cir. 2004) ("Because plaintiffs seek injunctive and

declaratory relief, the numerosity requirement is relaxed and plaintiffs may rely on the reasonable

inference arising from plaintiffs' other evidence that the number of unknown and future members

. . . is sufficient to make joinder impracticable."). And although "[n]umerosity is more than a

numbers game," Howard's Rexall Stores, Inc. v. Aetna U.S. Healthcare, Inc., No. CIV. oo-CV-

7

Indeed, our rules do not even expressly allow for joinder, much less describe how parties are to seek it.

Thus, in so far as the numerosity requirement asks whether "joinder of all members is impracticable," it would appear

to always be answered in the affirmative in proposed class actions before us until we craft such a rule.

26

31B, 2001 WL 501055, at *6 (D. Me. May 8, 2001), "[w]hen class size reaches substantial

portions, . . . the impracticability requirement is usually satisfied by numbers alone." In re Am.

Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

In response to a Court order requesting more information, the Secretary stated that, per the

Department of Defense, 1,388 U.S. military personnel participated in the Palomares nuclear

cleanup. See Secretary's Dec. 13, 2018, Resp. The order also asked him to provide information

relating to certain categories of veterans in the proposed class. But instead, the Secretary explained

VA's "internal databases are not equipped to furnish the Court with the number of veterans falling

within the" class's various subcategories. Id. In reply, Mr. Skaar questioned the Secretary's

compliance with our order and noted the record reflects there are "at least nineteen veterans who

had filed claims for Palomares-related disabilities with the VA, 'including three appeals for

reassessment for a total of 22 claims.'" Appellant's Jan. 4, 2019, Resp. at 3 (quoting R. at 1580).

Given the overall number of veterans present at Palomares, the relaxed numerosity standard for

classes seeking injunctive relief, see Sueoka, 101 F. App'x. at 653, and Mr. Skaar's additional

information concerning the claims made, we may reasonably infer the proposed class contains

potentially up to 1,388 veterans and at least 22, a number sufficient to satisfy the numerosity

requirement. See, e.g., Lightfoot, 246 F.R.D. at 335. Thus, we hold the class satisfies the

numerosity requirement.

2. The proposed class presents a common issue capable of classwide resolution.

The second Rule 23 requirement for class certification, commonality, "requires the plaintiff

to demonstrate that the class members have suffered the same injury. This does not mean merely

that they have all suffered a violation of the same provision of law." Wal-Mart, 564 U.S. at 350.

Rather, "[t]heir claims must depend upon a common contention." Id. "That common contention,

moreover, must be of such a nature that it is capable of classwide resolution – which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each one

of the claims in one stroke." Id. "[F]or purposes of Rule 23(a)(2) [e]ven a single [common]

question will do." Id. "What matters to class certification . . . [is] the capacity of a classwide

proceeding to generate common answers apt to drive the resolution of the litigation." Id. "The

critical point is 'the need for conduct common to members of the class.'" Suchanek, 764 F.3d at

756 (quoting In re IKO Roofing Shingle Prods. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014))

(emphasis in original). "Where the same conduct or practice by the same defendant gives rise to

the same kind of claims from all class members, there is a common question." Suchanek, 764 F.3d

750, 756 (7th Cir. 2014); see In re Nat'l Football League Players Concussion Injury Litig.,

821 F.3d 410 (3d Cir. 2016).

The Secretary concedes the proposed class would satisfy the commonality requirement if

the class is limited "to include only those veterans whose applications [for service-connected

disabilities] were denied based on § 3.311[.]" See Secretary's Feb, 20, 2018, Resp. at 17.

Considering our dismissal of the class challenge to § 3.309 and corresponding modification of the

class definition, this is an effective concession of commonality as to the class challenge under

§ 3.311 as only "those veterans whose applications were denied based on § 3.311" would qualify

as class members. Further, we agree commonality is met for this claim. The class members' claims

"depend upon a common contention"—that VA's dose estimate procedures do not rely on "sound

27

scientific and medical evidence" in contravention to § 3.311(c)(1)(i)—that "is capable of classwide

resolution"—in the form of an order enjoining the Secretary from denying claims under § 3.311

until VA's procedures comply with the regulation. Wal-Mart, 564 U.S. at 350.

3. Mr. Skaar's claim is typical of that of the proposed class.

Class certification also requires that "the claims or defenses of the representative parties

are typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). This inquiry focuses on

whether "in pursuing his own claims, the named plaintiff will also advance the interests of the class

members." In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir. 1996). Or, put differently, "as goes

the claim of the named plaintiff, so go the claims of the class." Sprague v. Gen. Motors Corp.,

133 F.3d 388, 399 (6th Cir. 1998). Although distinct, the typicality requirement overlaps with

certain other requirements of Rule 23(a). In particular, "[t]he commonality and typicality

requirements . . . tend to merge." Falcon, 457 U.S. at 157 n.13.

Courts will deny class certification "when the variation in claims" between a class

representative and absent class members "strikes at the heart of the respective causes of actions."

Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 2006). The class representative's claims

need not be identical, but must "share the same essential characteristics as the claims of the class

at large." Haggart v. United States, 89 Fed. Cl. 523, 534 (2009); Arreola v. Godinez, 546 F.3d 788,

798 (7th Cir. 2008). "The test of typicality 'is whether other members have the same or similar

injury, whether the action is based on conduct which is not unique to the named plaintiffs, and

whether other class members have been injured by the same conduct.'" Wolin v. Jaguar Land Rover

N.A., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v. Dataproducts Corp., 976 F.2d

497, 508 (9th Cir. 1992)). "[T] he typicality prong of Rule 23(a) sets a relatively low threshold."

Karvaly v. eBay, Inc., 245 F.R.D. 71, 82 (E.D.N.Y. 2007); see, e.g., Stirman v. Exxon Corp., 280

F.3d 554, 562 (5th Cir. 2002); Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 426 (5th Cir.

1997). Typicality is also easier to satisfy where classes seek injunctive relief. See Baby Neal ex.

Rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994).

The Secretary argues Mr. Skaar's claim is not typical enough to permit him to serve as class

representative because the reason for any denials of Palomares veterans' claims related to ionizing

radiation exposure may not turn on the results of dose estimates requested under § 3.311. See

Secretary's Feb. 20, 2018, Resp. at 17-19; Secretary's July 27, 2018, Resp. at 8-11. Much like any

concerns regarding commonality and standing, this concern is alleviated by our restructuring of

the class. As explained above, because we are dismissing the class challenge to § 3.309 for lack of

standing, the only issue before us concerns those claims that have either been denied or will be

denied under § 3.311.

And as discussed above regarding Mr. Skaar's standing to represent the class, the

Secretary's argument that Mr. Skaar lacks standing to represent class members whose claims had

been denied under the Air Force's pre-2013 methodology also presents potential typicality

concerns. But, as we explained, the pre- and post-2013 distinction is largely theoretical. Put simply,

Mr. Skaar shares the same injury from VA's reliance on Air Force's dose estimates as any

conceivable claimant falling within the modified class. Thus, his claim "share[s] the same essential

28

characteristics as the claims of the class at large," and his claim is typical enough to permit him to

serve as class representative. Haggart, 89 Fed. Cl. at 534.

4. Mr. Skaar will fairly and adequately protect the interests of the class.

The final Rule 23(a) inquiry asks whether "the representative parties will fairly and

adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). "A decision with respect to

the class is conclusive only if the absent members were adequately represented by the named

litigants and class counsel." In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d

763, 768 (7th Cir. 2003), abrogated on other grounds by Smith v. Bayer Corp., 564 U.S. 299

(2011). 8 "Adequacy is twofold: the proposed class representative must have an interest in

vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests

of other class members." In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,

249 (2d Cir. 2011). Thus, "[t]he adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts

of interest between named parties and the class they seek to represent." Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 626 (1997). Class representatives serve as fiduciaries for certified classes.

See London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1254 (11th Cir. 2003).

To be adequate, class representatives must possess the claim asserted on behalf of the class,

have interests otherwise aligned with and not antagonistic to those of the class, and be able to

advocate vigorously and competently for the interests of the class. See Kirkpatrick v. J.C. Bardford

& Co., 827 F.2d 718, 727 (11th Cir. 1987). For much of the same reasons typicality and

commonality are present here, we hold Mr. Skaar is adequate to serve as class representative. He

possesses the same claim as the unnamed class members, his interest in VA complying with

§ 3.311(c)(1)(i) is aligned with the class, and there is no indication he is unable to vigorously and

competently advocate for the interests of the class. Id. Moreover, we see no conflict of interest that

would prevent Mr. Skaar from advancing the interests of the class.

5. The requested injunctive relief is appropriate respecting the class as a whole.

Federal Rule of Civil Procedure 23(b)(2) permits aggregation when all Rule 23(a)'s

perquisites have been met, and "the party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole." The Supreme Court has instructed that "[t]he key to

the (b)(2) class is 'the indivisible nature of the injunctive or declaratory remedy warranted – the

notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the

class members or as to none of them." Wal-Mart, 564 U.S. at 360 (quoting Richard A. Nagareda,

Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)). Rule

23(b)(2) requires that "a single injunction or declaratory judgment . . . provide relief to each

member of the class." Id. Thus, if there are class members who would not benefit from a class-

wide injunction (or declaration), certification under Rule 23(b)(2) would not be appropriate. See

Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018) (commenting in action concerning claims by

detained aliens that, because some members of the class may not be entitled to the requested relief,

certification under Rule 23(b)(2) might be inappropriate).

8

We consider the adequacy of class counsel below.

29

We hold the proposed class meets Rule 23(b)(2)'s requirements for certification. The class

seeks a single class-wide injunction ordering VA to comply with the provisions of § 3.311. And

with the dismissal of the class challenge to § 3.309 and the restriction of the class to those claimants

who have been or will be subject to § 3.311, there is no question that, if the class succeeds on the

merits, "injunctive relief or corresponding declaratory relief"—in the form of an order from this

Court to the Secretary that he comply with the provisions of § 3.311—"is appropriate respecting

the class as a whole." FED. R. CIV. P. 23(b)(2).

6. The class action device is a superior method of litigating the class claim.

Having concluded Rule 23(a) and Rule 23(b)(2) are satisfied, we could stop our

certification analysis were we sitting as a district court. However, we are not. We have used Rule

23 as a "guide" for class certification. But we are not bound by it. See Int'l Union, UAW, Local 283

v. Scofield, 382 U.S. 205, 217 n.10 (1965) (the "Federal Rules of Civil Procedure . . . apply only

in the federal district courts"); FED. R. CIV. P. 1 ("These rules govern the procedure in the United

States district courts."). As we mentioned earlier in our discussion, to our knowledge, we are the

only appellate body in the Nation with the authority to aggregate actions in the first instance. Our

appellate nature and national jurisdiction make us stand apart from the ordinary course of aggregate

litigation in Federal district courts, which are empowered to find facts and conduct discovery while

we are not, absent some limited circumstances. See 38 U.S.C. § 7261(c) ("In no event shall

findings of fact made by the Secretary or the Board of Veterans' Appeals be subject to trial de novo

by the Court."); § 7252(b) ("Review in the Court shall be on the record of proceedings before the

Secretary and the Board."); but see Monk III, 30 Vet.App. at 171 (holding this Court "has authority

to conduct limited factfinding to determine whether class certification is warranted"); Bove,

25 Vet.App. at 143 ("[T]his Court . . . may seek facts outside the record before the Board and

independently weigh the facts to determine if equitable tolling is appropriate."); Erspamer v.

Derwinski, 1 Vet.App. 3, 10 (1990) (Court may consider facts not before the Board when

considering the merits of a petition for extraordinary relief). Moreover, we are different than

district courts because we can issue precedential decisions that bind those not before the Court. In

other words, unlike district courts, our decisions can have something like the effect of a class action

judgment without receiving class treatment.

As we explain below, class actions before us will serve as a special procedural device for

certain types of claims that lend themselves to aggregate adjudication. This is because class actions

"conserve judicial resources by allowing courts to treat common claims together, obviating the

need for repeated adjudications of the same issues." Cochran v. Volvo Grp. N.A., LLC, No. 1:11-

CV-927, 2013 WL 1729103, at *1 (M.D.N.C. Apr. 22, 2013). They also relieve absent class

members from having to bring and litigate complex claims individually. "[A]n absent class-action

plaintiff is not required to do anything. He [or she] may sit back and allow the litigation to run its

course, content in knowing that there are safeguards provided for his [or her] protection." Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985). Especially in an adjudicatory system involving

large numbers of unrepresented claimants, class actions may allow claimants, such as Mr. Skaar,

who have the resources, knowledge, and desire to challenge VA conduct and regulations to step

forward and represent similarly situated claimants and, through notice of certification, educate

30

other class members about the existence of a legal claim against the VA. See Watkins v. Simmons

& Clark, Inc., 618 F.2d 398, 404 (6th Cir. 1980).

But our unique nature requires considerations beyond those applicable to district courts

under Rule 23. Just as there are reasons in favor of exercising our discretion to certify a class in a

particular matter, so, too, are there reasons counseling against certification. In Harrison, we

declined to adopt class action procedures because (i) we believed we lacked the power to adopt

such procedures; (ii) the potential difficulties in managing class actions in the first instance at the

appellate level; and (iii) the availability of precedential decision-making as a superior form of

litigation. 1 Vet.App. at 439. As we stated in Monk III, the Federal Circuit has expressly overruled

Harrison's first factor, lack of authority. 30 Vet.App. at 171 n.5. In Monk III, we declined to decide

whether the remaining two Harrison factors were appropriate considerations for class certification.

Id. We now explain that the remaining two Harrison factors—manageability and the availability

of precedential decisions—stem from the unique nature of this Court and are relevant

considerations in the class certification analysis before this Court, even if they are not categorical

reasons to decline to certify class actions.

While we recognize for traditional Rule 23(b)(2) class actions, "superiority [is] self-

evident," Wal-Mart, 564 U.S. at 363, our national jurisdiction makes the inquiry different here.

Requiring claimants to justify the use of the class action device considering the available

alternatives, such as single-party precedential decisions, consolidation, petitions for rulemaking,

and the ability to issue writs of mandamus, is necessary to justify the expenditure of judicial time

and energy required to adjudicate class actions as an appellate court in the first instance and assume

the risk of prejudicing the rights of absent veterans. See Pipefitters Local 636 Ins. Fund v. Blue

Cross Blue Shield, 654 F.3d 618, 630-31 (6th Cir. 2011). Thus, considering our appellate nature

and limited factfinding abilities and guided by Rule 23, class actions before this Court are the

exception, not the rule. In other words, we will presume classes should not be certified because

our ability to render binding precedential decisions ordinarily will be adequate. Claimants seeking

class certification can rebut this presumption by showing by a preponderance of the evidence that

a class action is "superior to other available methods for fairly and efficiently adjudicating the

controversy" before we will exercise our discretion in certifying a class. FED. R. CIV. P. 23(b)(3).

This is a "fact-specific analysis" that "will vary depending on the circumstances of any given case."

Madison v. Chalmette Ref., L.L.C., 637 F.3d 551, 555 (5th Cir. 2011).

Rule 23(b)(3) lists several factors for determining the superiority of a class action. This is

at least a useful starting point. Of these, only 23(b)(3)(D) is relevant here.9 That factor addresses

"the likely difficulties in managing a class action," a highly relevant concern given our previously

9

Subsection (A) looks at "the class members' interests in individually controlling the prosecution or defense

of separate actions. FED. R. CIV. P. 23(b)(3)(A). But absent claimants are already bound by our precedential decisions,

see 38 U.S.C. § 7269, and thus we need not require this factor. Subsection (B) considers "the extent and nature of any

litigation concerning the controversy already begun by or against class members." FED. R. CIV. P. 23(b)(3)(B). Our

national jurisdiction addresses this factor. See 38 U.S.C. § 7269. Duplicative legal issues can already be brought in

this Court and we have adequate means to address them. See U.S. VET. APP. R. 5(a)(3) (allowing us to stay matters

pending before the Court "in the interest of judicial efficiency"). Finally, subsection (C) is not relevant here as we are

the appropriate forum for claimants to challenge VA's denial of benefits. See FED. R. CIV. P. 23(b)(3)(C) (listing "the

desirability or undesirability of concentrating the litigation of claims in the particular forum" as a 23(b)(3) factor); see

also 38 U.S.C. §§ 7252, 7261.

31

discussed limitations. FED. R. CIV. P. 23(b)(3)(D). Manageability "encompasses the whole range

of practical problems that may render the class action format inappropriate for a particular suit."

Eisen, 417 U.S. at 164. Courts have declined to certify classes because of manageability concerns

where individual class members brought claims in different states under different state laws, see

Riordan v. Smith Barney, 113 F.R.D. 60, 66 (N.D. Ill. 1986); communication with some class

members would be unduly difficult, see Mateo v. The M/S Kiso, 805 F. Supp. 761, 774 (N.D. Cal.

1991); individual damages calculations would be too complex, see Abrams v. Interco, Inc.,

719 F.2d 23, 31 (2d Cir. 1983); the class required too many individualized determinations, see

Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 149 (3d Cir. 2008); and the sheer size

of the class made effecting notice and providing opt out rights unmanageable, see Gaffney v.

United States, 834 F. Supp. 1, 6 (D.D.C. 1993). Importantly, the "focus is not on the convenience

or burden of a class action suit per se, but the relative advantages of a class action suit over

whatever other forms of litigation might be realistically available" to claimants. Klay v. v. Humana,

Inc., 382 F.3d 1241, 1269 (11th Cir. 2004); see also Johnston v. HBO Film Mgmt., 265 F.3d 178,

194 (3d Cir. 2001) (class action must represent the best available method for fair and efficient

adjudication to warrant certification). But again, we only use Rule 23 as a guide. It is imperfectly

crafted for our appellate setting and Rule 23(b)(3)(D)'s baseline is only the starting point of our

analysis. In the balance of this section, we provide a non-exhaustive set of factors we will consider

when deciding if a claimant has rebutted the presumption against aggregate action.

After canvassing federal class action jurisprudence and considering our unique appellate

nature, we hold that, when considering whether the presumption against aggregate action has been

rebutted, the Court will consider, as appropriate, whether (i) the challenge is collateral to a claim

for benefits; (ii) litigation of the challenge involves compiling a complex factual record; (iii) the

appellate record is sufficiently developed to permit judicial review of the challenged conduct; and

(iv) the putative class has alleged sufficient facts suggesting a need for remedial enforcement. No

one of these factors is more or less important than the others, rather the Court must engage in a

case-by-case balancing to determine whether class certification is appropriate.

The first factor, whether the challenge is collateral to a claim for benefits, focuses on

whether "the 'plaintiffs' claims are essentially to the policy itself, not its application to them, nor

to the ultimate substantive determination of their benefits.'" Stengel, 983 F. Supp. at 1159 (quoting

Johnson, 922 F.2d at 346). Such claims are "not essentially a claim for benefits" because they do

"not merely challeng[e] the merits of the" agency's ultimate benefits determination. Id. In appeals

involving clear regulatory or constitutional attacks on VA's application of a regulation such as this

one, determining whether a matter is collateral will likely involve a simpler analysis than those

instances where the regulatory or constitutional challenge is necessarily intertwined with VA's

merits determination. Thus, the proper focus is whether the class challenge "is bound up with the

merits so closely that our decision would constitute 'interference with agency process.'" Johnson,

922 F.2d at 353 (quoting Salfi, 422 U.S. at 765).

The second factor, whether litigation of the challenge involves compiling a complex factual

record, is meant to reserve the class device for challenges that will likely require extensive record

development at the Agency beyond the class representative's individual benefits claim. Without

such factual development, many claimants could find it extraordinarly difficult to litigate such

challenges as they would lack the ability to obtain the information necessary to substantiate the

32

class claims. Additionally, class certification centralizes litigation in a single appellate record,

obviating the need for unnamed class members to collect evidence or request information from

VA and for VA to adjudicate duplicative information requests.

The third factor requires considering whether the record is sufficiently complete for

adjudication. This reflects the fact that "the focal point for judicial review [of agency conduct]

should be the administrative record already in existence, not some new record made initially in the

reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). Further, the putative class

representatives have control over this factor as ordinarily the completeness of the record is strongly

influenced by claimants expressly raising arguments before the Board and entering relevant

evidence into the record. As stated above, we do, just as in the petition context, have some limited

factfinding ability when deciding motions for class certifications in the appeal context. See Monk

III, 30 Vet.App. at 174. But factfinding is "typically unnecessary to judicial review of agency

decisionmaking." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). This is doubly so

for our court, which, as discussed, has unique limitations on its factfinding ability above and

beyond those of a federal district court. See 38 U.S.C. §§ 7261(c), 7252(b). But see Monk III,

30 Vet.App. at 171; Bove, 25 Vet.App. at 143; Erspamer, 1 Vet.App. at 10. Thus, the extent to

which a proposed class will require additional factfinding is an important consideration in

determining whether the presumption against aggregate action is rebutted.

The final factor deals with enforcement. When this Court issues a favorable precedential

decision, it certainly binds VA in all pending and future claims. See 38 U.S.C. § 502. But claimants

not party to that decision who may be subject to errors affecting their rights, whether due to VA's

non-compliance with our decision at a later date or otherwise, do not have any right to prompt

remedial enforcement. Their only recourse is bringing the allegedly invalid agency action before

us by fully exhausting agency review before filing a notice of appeal. And in some cases, this will

be an ordinary feature of litigation. But where the facts suggest a need for prompt remedial

enforcement, claimants may instead seek class certification. This is a fact-specific analysis that

will vary based on the unique facts of each individual appeal. So, for example, one need not find

that the Agency is likely to disobey—we find such willful noncompliance unlikely in all but the

most extreme case. Instead, a special need for remedial enforcement might be the result of the class

members' age or some similar factor suggesting the need for especially timely relief.

Applying these factors here, class certification is the superior method for litigating the

remaining class claim. The class claim is collateral to Mr. Skaar's claim for benefits because it

challenges VA's adherence to a generally applicable regulation and is not "bound up with the merits

[of Mr. Skaar's claim for disability benefits] so closely that our decision would constitute

'interference with agency process,'" Johnson, 922 F.2d at 353 (quoting Salfi, 422 U.S. at 765), as

a favorable decision on the merits would not be an "order that class members be paid benefits" nor

would it "in any way interfere with the agency's role as the ultimate determiner of eligibility" for

benefits. City of New York, 476 U.S. at 485. In fact, a merits decision in the class's favor would do

"no more than the agency would have been called upon to do had it, instead of [us], been alerted

to the" alleged deficiencies in the Air Force's dose estimate methodologies. Id. Thus, this factor

weighs in favor of certification.

33

So, too, does the second. The record in this case is complex and voluminous, containing

numerous documents related to technical and scientific matters, e.g., R. at 2635-50, 2682-3501,

and decades old records, e.g., R. at 3558-4148. Centralizing the class challenge in one litigation

strikes us as a far better use of our limited judicial resources and avoids the specter of both

unnamed class members and VA engaging in duplicative record development.10

The third factor also weighs in favor of certification. Mr. Skaar and the proposed class have

submitted scientific evidence challenging the validity of the Air Force's dose estimates. See R. at

2635-50. We are also equipped with the Board's supplemental statement addressing Mr. Skaar's

challenge to VA's adherence to § 3.311. See generally Secretary's Mar. 29, 2019, Resp. We require

no additional information to decide the class challenge on the merits. Importantly, if the class

sought not only to challenge VA's compliance with § 3.311 but also proffered an alternative dose

methodology, we would likely require significant amounts of additional information such that class

certification could prove impractical. However, here, the record is complete.

Finally, the class has alleged sufficient facts suggesting a need for timely remedial

enforcement, and thus the final factor also weighs in favor of certification. The Palomares nuclear

cleanup occurred on January 17, 1966, nearly 54 years ago. The advanced age of the class

members, especially considering they all must suffer from a radiogenic disability to qualify,

suggests a need for the availability of prompt remedial enforcement. VA already considers

claimants' ages when determining whether to expedite appeals. See 38 U.S.C. § 7107. Thus, we

think it an apt consideration in the class certification context as well. Additionally, the requested

relief is identical across the class—a Court order to VA that it comply with § 3.311. It is more

efficient and prudent to administer the requested class relief here collectively through an orderly

and consistent process amenable to judicial supervision, rather than through piecemeal litigation.

All four factors weigh in favor of certification. Thus, we hold class certification is a

superior method of litigating the remaining class claim.

7. Proposed counsel is adequate.

Having now concluded a class action is appropriate in this appeal as to the § 3.311 claim,

we turn to the appointment of class counsel who is adequate to protect the interests of absent class

members. Although Rule 23(a)(4) historically included an analysis of the adequacy of class

counsel, that inquiry is now codified in 23(g). See Sheinberg v. Sorensen, 606 F.3d 130, 132-35

(3d Cir. 2010). Despite the rule change, the analysis is largely the same. See Kalish v. Karp &

Kalamotousakis, LLP, 246 F.R.D. 461, 463 (S.D.N.Y. 2007). The Rule provides a set of factors

courts must consider when judging class counsel's adequacy: (i) the work already done

investigating and developing the claims; (ii) counsel's class action and substantive legal

experience; (iii) counsel's relevant legal knowledge; and (iv) counsel's willingness to litigate the

claim. FED. R. CIV. P. 23(g)(1)(A)(i)-(iv). Courts are not limited to these factors and "may consider

any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the

10

As an example of the type of duplicative recordmaking we hope to discourage, Mr. Skaar indicated that

several other putative class members with claims at the Board would "shortly submit in their own cases the same

records" he has already submitted to the Court. Appellant's June 20, 2018, Resp. at 14, n.4. Such duplicative

recordmaking cannot be in the interest of systemic efficiency.

34

class." FED. R. CIV. P. 23(g)(1)(B). We adopt these Rule 23(g) factors as guides for our assessment

of the adequacy of class counsel.

Proposed class counsel in this action is Michael Wishnie, Esq., of the Veterans Legal

Services Clinic of Yale Law School's Jerome N. Franks Legal Services Organization. He is

adequate. Counsel has done extensive work developing the claims at issue in this matter,

demonstrated both "relevant legal knowledge" of and experience in both class action litigation and

veterans law through prior aggregate actions before us, see, e.g., Monk III, 30 Vet.App. at 174, and

shown a willingness to commit the necessary resources to lead this action through counsel's

extensive work on this matter. Thus, and because there are no "other matter[s] pertinent to counsel's

ability to fairly and adequately represent the interests of the class," counsel is adequate and will be

appointed to represent the class. See FED. R. CIV. P. 23(g)(1)(B).

8. Generalized notice of class certification is required but opt out rights are not.

We have two final matters to consider, although they are related. We must first determine

whether to afford class members the opportunity to opt out of the class we have certified. Next,

we must determine what type of notice, if any, to provide to the class about this certification. The

issues are related because if opt out rights are available, ensuring actual notice of the pendency of

the class action takes on greater importance.

Classes certified under Rule 23(b)(2) generally do not require opt-out rights for absent class

members. See Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990). This is so because

the indivisible nature of injunctive relief means it applies to every member of the class no matter

what. See In re Allstate Ins. Co., 400 F.3d 505, 506 (7th Cir. 2005) (commenting that "[t]he

thinking behind this distinction [concerning opt out rights] is that declaratory and injunctive relief

will usually have the same effect on all members of the class as individual suits would"). This

same indivisible nature of the injunctive relief requested here combined with this Court's national

jurisdiction counsel against allowing opt-out opportunities for members of the class we have

certified. See 38 U.S.C. § 7269.

Federal Rule 23(c) states "[f]or any class certified under Rule 23(b)(1) or (2), the court may

direct appropriate notice to the class" while for those certified under (b)(3) "the court must direct

to class members the best notice practicable under the circumstances." (emphasis added). Because

we have determined the class members do not have the right to opt out of the class we have

certified, notice at this stage of the proceedings is less critical than if class members could remove

themselves from the class. Nonetheless, we believe it is the best practice to take reasonable steps

to inform class members of the pendency of this action. Such notice need not be individualized for

each member of the class but, rather, may be a generalized notice. As directed at the conclusion of

this order, the parties are to jointly submit a proposed class notice and plan for effecting notice,

both of which we must approve. If the parties are unable to agree, they should submit separate

sections and include them in the joint submission.

35

III. CONCLUSION

We are, as we have observed before, "in uncharted waters." Monk v. Shulkin, No. 15-1280,

2018 WL 507445, at *2 (Jan. 23, 2018). We recently recognized our authority to aggregate actions

in the petition context, see Monk II, 30 Vet.App. at 170-71, and we will now do so in the appeal

context as well. Our decision today heralds the beginning of an era in which we will entertain, but

by no means always certify, class actions in the first instance, making us the only Federal appellate

court in the Nation to do so. Grappling with the complexities of the law of aggregate action while

also maintaining fidelity to the VJRA and congressional intent to benefit those who have served

the Nation has been—and no doubt will continue to be—a challenge we must face. But if class

action procedures can lead to more consistent, efficient, and effective adjudication, then our

Nation's veterans deserve no less.

Upon consideration of the foregoing, it is

ORDERED that the motion for class certification is GRANTED IN PART and DENIED

IN PART. It is further

ORDERED that the proposed class definition is modified as explained herein and the

following class is certified in this matter: All U.S. veterans who were present at the 1966 cleanup

of plutonium dust at Palomares, Spain, and whose application for service-connected disability

compensation based on exposure to ionizing radiation VA has denied or will deny by relying, at

least in part, on the findings of dose estimates requested under 38 C.F.R. § 3.311, except those

whose claims have been denied and relevant appeal windows of those denials have expired, or

those whose claims have been denied solely based on dose estimates obtained before 2001. It is

further

ORDERED that Michael J. Wishnie, Esq., is appointed as class counsel. It is further

ORDERED that, within 30 days, the parties jointly submit a proposed class notice and plan

for effecting notice. If the parties are unable to agree, they are to submit separate sections and

include them in the joint submission. It is further

ORDERED that this matter is returned to the original panel appointed to this appeal for

management of the class action and a decision on the merits.

DATED: December 6, 2019

SCHOELEN, Senior Judge, concurring in part and dissenting in part:

I agree with my colleagues in the majority generally as to the usefulness of the class action

mechanism in the context of appeals before this Court. I particularly agree that class certification

could be a useful device for dealing with broad, ancillary issues such as the potentially flawed dose

estimate methodology challenged in the case before us. That issue exists outside the boundaries of

traditional veterans law litigation, and having a system in place to address a discrete legal issue

divorced from class members' underlying benefits claims will increase judicial efficiency and

agency adjudication rates. Nonetheless, I respectfully disagree with the majority's ill-explained

36

finding that our jurisdictional statute permits us to include Future-Future Claimants as class

members. I also disagree with their unwillingness to include Past Claimants and Expired

Claimants in the class. In my view, the majority's interpretation and application of Bowen v. City

of New York, 476 U.S. 467 (1986), is flawed, and their flawed view systematically precludes

vulnerable veterans from receiving full and fair hearings. Additionally, I am very concerned about

reconciling our role as an appellate court that can issue precedential decisions with the necessity

and superiority of class actions. To that end, I propose additional factors for the balancing test

analyzing whether class actions are superior to precedential decisions.

I. THE FUTURE-FUTURE CLAIMANTS SHOULD BE EXCLUDED FROM THE

CLASS

The majority states that City of New York "bears a striking similarity to the matter before

us." Majority at 19. I strongly agree, and find our jurisdictional statute, 38 U.S.C. § 7252, to be

properly analogous to the Social Security jurisdictional statute, 42 U.S.C. § 405(g), at issue in City

of New York, which is why I find the majority's inclusion of the Future-Future Claimants in the

class troubling.

At the outset, I agree with my dissenting colleagues insofar as they find that section 7252

includes the nonwaivable, jurisdictional requirement that a veteran's claim be presented

preliminarily to VA, just as the Supreme Court in Mathews v. Eldridge held that presentment was

a nonwaivable, jurisdictional requirement for Social Security claimants to obtain judicial review

under section 405(g). Dissent at 46-48; 424 U.S. 319, 328 (1976) ("The waivable element is the

requirement that the administrative remedies prescribed by the Secretary be exhausted. The

nonwaivable element is the requirement that a claim for benefits shall have been presented to the

Secretary."). This is so because, intuitively, there can be no decision under either statute absent a

claim.

The majority glosses over this requirement and instead summarily concludes that we have

jurisdiction over the Future-Future Claimants. It is unclear to me whether the majority finds that

we have jurisdiction over nonpresenting Palomares veterans because we have jurisdiction over

Mr. Skaar or because they should be treated in like manner to the Present-Future Claimants under

the administrative exhaustion analysis. If it is the former, the Social Security cases we rely upon

throughout this opinion counsel that the jurisdictional requirement that someone file a claim is an

individual requirement that cannot be waived; if it is the latter, the majority improperly conflates

the concepts of presentment and exhaustion. Nothing in our caselaw or the analogous Social

Security cases leads me to believe that either of these theories is a faithful interpretation of our

jurisdictional statute. To the contrary, section 7252 is, on its face, sufficiently comparable to

section 405(g) and this Court should find that presentment is a jurisdictional requirement. Simply

put, it cannot possibly be true that our jurisdictional statute is waivable in its entirety for potential

class members who have never filed a claim.

Further, I find no Social Security caselaw that allows a District Court to assert jurisdiction

over nonpresenting individuals pursuant to section 405(g). In fact, when nonpresenting individuals

have been consolidated with other Social Security class members, courts have invoked creative

mechanisms such as mandamus jurisdiction under 28 U.S.C. § 1361. See Clark v. Astrue,

37

274 F.R.D. 462, 467 (S.D.N.Y. 2011) ("[I]ndividuals failing to present their claims can still be part

of the class because the Court may exercise mandamus jurisdiction over their claims pursuant to

28 U.S.C. § 1361."); see also City of New York v. Heckler, 742 F.2d 729, 739 & n.7 (2d Cir. 1984);

Ellis v. Blum, 643 F.2d 68, 77-82 & n.10 (2d Cir. 1981). Our closest analogue is the All Writs

Act, which does not provide an independent source of jurisdiction, but rather allows us to protect

our future jurisdiction. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002) (affirming

that the All Writs Act does not confer jurisdiction on the federal courts); see also Clinton v.

Goldsmith, 526 U.S. 529, 534-35 (1999) (noting that the express terms of the All Writs Act confine

a court "to issuing process 'in aid of' its existing statutory jurisdiction; the Act does not enlarge

that jurisdiction"). Because other federal courts have found the need to invoke an independent

source of jurisdiction for nonpresenting class members, and because we have no other statutory

grant of jurisdiction outside section 7252, it follows that our Future-Future Claimants cannot be

consolidated as part of the class.

Despite the fact that I believe the Future-Future Claimants should not be part of the class,

it is worth noting that this group of veterans is unlikely to be harmed by exclusion. In some ways,

the exclusion of the Future-Future Claimants presents a legal fiction unique to this Article I

appellate court – the precedential effect of our decision will bind them regardless of their

nonpresenting status, and as soon as they file, they will be subject to whatever rule VA has been

judicially mandated to follow. Although the Future-Future Claimants are necessarily implicated in

this litigation, our authority to issue precedential decisions means they will not suffer any injustice

during these proceedings, and our jurisdictional statute should not be skirted to establish a false

equivalent with the Present-Future Claimants.

II. THE PAST AND EXPIRED CLAIMANTS SHOULD BE

INCLUDED IN THE CERTIFIED CLASS

I also take exception with the majority's exclusion of the Past and Expired Claimants from

the class. City of New York addressed the same legal issues we now face in deciding class

composition – exhaustion of administrative remedies and equitable tolling – but, here, the majority

has only adopted the Supreme Court's holding insofar as it pertains to the exhaustion of remedies

issue. I do not believe the majority's application of that case is uniform or consistent.

In City of New York, the Supreme Court, in affirming the rulings of both the District Court

and the Court of Appeals, notes that the District Court included claimants in the class who had not

exhausted their administrative remedies. City of New York, 476 U.S. at 475-76 (citing Eldridge,

424 U.S. at 319). The Supreme Court then recounts the District Court's analysis as to why the class

properly included those who had not complied with the 60-day statute of limitations:

The [District] [C]ourt noted that the 60-day requirement is not jurisdictional . . .

[and] found that "the same reasons which justify implying waiver of the exhaustion

requirement are stronger for the sixty[-]day requirement because the statute of

limitations is not, as is the exhaustion requirement, 'central to the requisite grant of

subject-matter jurisdiction.'"

Id. at 476 (emphasis added) (citations omitted).

38

Effectively, the majority properly applies City of New York's analysis as to the jurisdictional

question (at least insofar as it pertains to the Present-Future Claimants), but chooses to impose a

higher burden on the claimants in the nonjurisdictional portion of the case. This should not be so.

Here, as in City of New York, the same rationales for waiver of the administrative exhaustion

requirement are applicable to, and indeed stronger for, the equitable tolling issue. Succinctly

stated, this Court should not waive the jurisdictional requirements for one class of veterans and

then exclude other classes of veterans who present no jurisdictional impediments.11

Moreover, it is unclear to me whether the majority purports to adopt City of New York's

equitable tolling framework and chooses to find that the nonsecretive nature of VA's dose estimate

methodology distinguishes the matter, or whether they do not believe that framework applies at all

to the Past and Expired Claimants simply because the specter of equitable tolling "offends the very

notion of finality." Majority at 23. Regardless, I respectfully find their interpretation far too

narrow.

A. Proper Application of Equitable Tolling Framework

This Court should endorse a wholesale import of City of New York's framework. That

means that, when analyzing whether equitable tolling is warranted for Past and Expired Claimants

in a class context, two questions are presented: (1) "[W]hether equitable tolling is consistent with

Congress' intent," and (2) "whether tolling is appropriate on these facts." City of New York, 476

U.S. at 480.

The first question should be answered now and applied to all future class certification

analyses: Yes, equitable tolling in the context of the Expired Claimants and Past Claimants is

consistent with congressional intent. Just like 42 U.S.C. § 405(g) at issue in City of New York,

Congress designed the applicable veterans benefits statutes to be "unusually protective" of

claimants. Id.; see Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 437 (2011) ("The

Social Security disability benefits program, like the veterans benefits program, is 'unusually

protective' of claimants.") (quoting Heckler v. Day, 467 U.S. 104, 106-07 (1984)). As the U.S.

Court of Appeals for the Federal Circuit has stated, "Congress' intent in crafting the veterans

benefits system is to award 'entitlements to a special class of citizens, those who risked harm to

serve and defend their country. This entire scheme is imbued with special beneficence from a

grateful sovereign.'" Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (quoting Bailey

v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (en banc) (Michel, J., concurring)); see also Jaquay

v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002) (en banc); Hensley v. West, 212 F.3d 1255, 1262

(Fed. Cir. 2000). That "special beneficence" is noted time and again in caselaw, and "in the context

of veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the

importance of systemic fairness and the appearance of fairness carries great weight." Hodge v.

West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

11

I note that, although I agree with the dissent's point regarding the nonwaivability of section 7252's

presentment requirement, I diverge from their thinking as to exhaustion. I agree with the majority's finding that our

jurisdictional statute is sufficiently analogous to section 405(g) to warrant the same exhaustion analysis conducted in

City of New York.

39

Keeping in mind this rationale as to why equitable tolling is appropriate in veterans law

cases generally, we must assess whether tolling is appropriate on the facts of this case. That must

be done by comparing this case to City of New York and determining whether the conduct at issue

here warrants our tolling of the filing deadline.

The majority tersely states that they will not equate VA's adjudication of Palomares

veterans' claims with the secretive conduct at issue in City of New York, then asserts that "there is

no principled way to distinguish the Expired Claimants here and any other claimants who have

been denied benefits, failed to appeal to this Court, and later discovered that their benefits denial

was based on an incorrect reading of the law." Majority at 23. In context, this means that the

majority has (1) implicitly held that "secretive conduct" must be at issue to trigger equitable tolling,

and (2) placed this case on equal footing with conventional challenges to denials of veterans'

disability compensation claims.

Other courts have not applied City of New York so strictly. For instance, the U.S. Court of

Appeals for the Eighth Circuit analyzed whether secretive conduct is "an absolute prerequisite" for

equitable tolling to be appropriate and held that "although a secret, internal policy is probably not

a prerequisite to equitable tolling, some type of misconduct on the part of the agency or gross, but

good-faith, error on the part of the claimant should justify this extraordinary remedy." Medellin

v. Shalala, 23 F.3d 199, 204 (8th Cir. 1994), rehearing denied (June 2, 1994). Similarly, the

Southern District of Ohio has previously held that equitable tolling was appropriate for a class of

plaintiffs challenging the former practice of the Secretary of Health and Human Services in

calculating the amount of supplemental security income (SSI) benefits. Though the policy at issue

was not secret or clandestine, the District Court found equitable tolling was warranted because the

calculation of SSI benefits was not made pursuant to an established regulation and claimants

"might well be unaware of the specific factors taken into account by the Secretary." Gould v.

Sullivan, 131 F.R.D. 108, 112 (S.D. Ohio 1989). Additionally, when certifying a class of

claimants, the Southern District of New York in Hill v. Sullivan stated that it did "not believe it

necessary to determine whether . . . behavior amounts to a 'clandestine policy' to 'prevent[ ]

plaintiffs from knowing of a violation of [their] rights.'" 125 F.R.D. 86, 95 (S.D.N.Y. 1989)

(citations omitted). Rather, the court agreed with the plaintiffs that the Secretary's failure to

publish challenged rulings "had the same practical effect on claimants as the defendant's secretive

conduct in [City of New York]." Id. (citations omitted).12

I do not attempt here to explicitly import another court's test or draw a bright line that can

be applied in future cases. Rather, when taken together, these cases demonstrate that equitable

tolling can be appropriate in instances where the conduct complained of falls short of "secretive,"

and I believe that, on the facts of this specific case, tolling is warranted. See Toomer v. McDonald,

783 F.3d 1229, 1239 (Fed. Cir. 2015) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)) (stating

that equitable tolling is a matter assessed by the Court on a case-by-case basis with an

12

Additionally, although not arising in the equitable tolling context, the District Court in Nehmer v. U.S.

Veterans' Admin. did not require secretive conduct by VA to include the "Expired Claimants" – i.e., the pre-1985

claimants – in the class. 118 F.R.D. 113 (N.D. Cal. 1987). Nevertheless, they were allowed to participate in the class

because they shared a threat of "future harm" with other class members. Id. at 117. This harkens to the analysis by

the majority that surely Congress did not expect veterans to have fewer rights after the Veterans' Judicial Review Act

than they did before its enactment.

40

acknowledgment of the "need for flexibility" and "for avoiding mechanical rules"). The U.S. Air

Force originally worked with consultants who developed a methodology for deriving dose

estimates for Palomares veterans, which was detailed in the LA Report; the inputs for this

methodology included vast amounts of scientific data not easily understood by laypersons,

including dosimetry readings, bioassay data, environmental testing, and multiple complex

computer models; over 12 years after the LA Report was published, the Air Force – not VA –

determined that inconsistencies existed in dose estimates; thereafter, the Air Force began using a

revised methodology when providing VA with dose estimates for Palomares veterans; and the

revised methodology also contained highly complex measurements and datasets (which may or

may not be flawed). There is no doubt in my mind that this development-and-assignment exercise,

conducted outside VA's purview and essentially devoid of oversight, prevented veterans from

continuing administrative appeals and pursuing benefits they may have been entitled to, and thus

is sufficient under City of New York's framework that the equities in this case favor tolling.

B. The Majority's Other Contentions

Further, the majority should not equate a flawed dose estimate methodology with a

misapplication of law. City of New York itself states that claimants who were subject to the

systemwide, unrevealed policy "stand on a different footing from one arguing merely that an

agency incorrectly applied its regulation."13 476 U.S. at 485. The dose estimates produced by that

methodology function as scientific facts ancillary to administrative proceedings, not as a legal

interpretation subject to future revision. And the development of this methodology behind a veil

at the Department of Defense (DoD) "prevented [the claimants] from realizing that they had valid

grounds for seeking administrative review." McDonald v. Sec'y of Health & Human Servs.,

834 F.2d 1085, 1090 (1st Cir. 1987). The flawed dose estimates did not function like a new legal

interpretation that was disadvantageous to veterans, but rather provided a flawed factual basis that

prevented claimants from even accessing the veterans benefits system.

Additionally, the majority says there is no principled way to distinguish the Past and

Expired Claimants from any other claimants who have been denied benefits, failed to appeal to

this Court, and later discover their benefits denial was based on an incorrect reading of the law.

Majority at 23. But I would assert that the same rationales for inclusion of the Present-Future

Claimants apply with equal – if not greater – force to the Past and Expired Claimants. The majority

views it a "substantive advantage" that veterans' claims will be relitigated maintaining their

effective dates, but to frame this advantage as more substantive than the inclusion of those

claimants over whom we do not typically have jurisdiction is incorrect. Equitable tolling is a

procedural tool the Court can use just like waiver of administrative exhaustion. The fact that

veterans can file supplemental claims under 38 U.S.C. § 5108(a) and 38 C.F.R. § 20.1105(a) is of

no consequence. Moreover, they may very well lose their original effective date, and thus it is not

a similar remedy. Veterans who are effectively barred from an entire administrative system via a

13

The Supreme Court made this statement when discussing claimants who had not exhausted their

administrative remedies as opposed to those who argued equitable tolling was warranted. Nevertheless, the phrase is

easily extended to the claimants seeking equitable tolling, as its purpose is merely to distinguish the policy challenge

from an illegal application of a regulation. In other words, regardless of which group within the proposed class we

are discussing, a claimant's challenge to the underlying obscured policy differs from a claimant's challenge to a

regulation.

41

factual error developed by an agency we have no direct authority over would not be "substantively

advantaged" in any way by including them in the class; instead, they would only be given what

they were improperly denied initially under the law.

Further, for the sake of argument, even if I agreed with the majority's premise that utilizing

the class device here renders substantive benefits for the Past and Expired Claimants, it is unclear

to me why that precludes this Court from including them in the class. City of New York clearly

endorsed certification of just such a group of Social Security claimants. Those claimants arguably

were privy to the same types of "substantive benefits" that our Past and Expired Claimants would

be, but were still included in the class. I believe it error to first invoke a categorical rule that class

certification should never be used for a substantive advantage, then label inclusion in the class a

substantive advantage, all while overlooking that City of New York did the very thing the majority

prohibits.

At the end of the day, Article III caselaw is not controlling, but this Court has chosen of its

own volition to import the narrowest interpretation possible of City of New York to justify

certifying an unjustly narrow class. 14 Our failure to equitably toll in this case does not show

reverence for existing interpretations of law or respect for the administrative process, but rather

provides tacit endorsement of DoD-developed policies and facts to be used later by VA, no matter

the consequences within VA's regulatory scheme.15 It is a statement that a group of vulnerable

veterans should not have full and fair hearings because they were not legally savvy enough to

challenge a complicated and convoluted dose reconstruction methodology developed by

consultants at an agency wholly separate from VA. As the U.S. Court of Appeals for the Second

Circuit stated in City of New York v. Heckler, "[a]ll of the class members who permitted their

administrative or judicial remedies to expire were entitled to believe that their Government's

determination of ineligibility was the considered judgment of an agency faithfully executing the

laws of the United States." 742 F.2d at 738. The Past and Expired Claimants should be allowed

their (legitimate) day in court, just like the Present-Future Claimants over whom we would not

traditionally have jurisdiction.

III. SUPERIORITY TEST

Another significant issue involves the determination of when we will grant class

certification versus when we will issue a precedential decision – a question unique to this appellate

court engaging in an activity typically committed to District Courts. Because we possess the

authority to issue precedential decisions that bind all future VA decisions, class actions would

likely be more appropriate in rare and unique circumstances. When assessing whether the class

action device is superior to a precedential decision, I agree with the majority that a balancing test

is appropriate; however, it must be a sufficiently robust test. To that effort, I would add two factors

14

See Henderson, 562 U.S. at 437-38 ("[N]one of the precedents cited by the parties controls our decision

here. All of those cases involved review by Article III courts. This case, by contrast, involves review by an Article I

tribunal as part of a unique administrative scheme.").

15

That is not to say that I necessarily agree with Mr. Skaar as to the merits underlying this case. But I believe

the majority to be saying that no matter how far removed from the veterans benefits process or the agency which

oversees it, and no matter how scientifically dense or ill-conceived the policy, we lack the power as an institution to

equitably toll veterans' cases if the alleged misconduct is not clandestine.

42

to their analysis. The first additional factor addresses whether litigation of the challenge involves

complex technical or scientific matters. The second addresses whether the alleged conduct is

"systemic" – that is, whether a significant number of VA claims involve this issue.

A. Technical or Scientific Complexity

This first additional factor is meant to reserve the class device for challenges that will likely

require sophisticated knowledge beyond the normal level of savvy needed by claimants or their

attorneys to litigate veterans' individual benefits claims. Many claimants could find it

extraordinarily difficult to litigate challenges involving technical data or complex scientific

concepts, as they would lack the ability to obtain or understand the information necessary to

substantiate their claims. Class certification centralizes litigation, obviating the need for unnamed

class members to independently construct theories based on data not readily available or

understandable.

This factor is related to, but separate from, the majority's second prong, which contemplates

whether "litigation of the challenge involves compiling a complex factual record." One of these

considers whether the underlying concepts that will be contemplated in merits litigation are

complicated to a litigant and one considers whether development before the agency is extensive

and onerous (essentially making it complicated for the Court). Future cases can and should

contemplate both factors when asking whether class certification is superior.

Here, the additional factor is clearly met. Understanding how DoD constructed dose

estimates for Palomares veterans, and understanding whether or how those dose estimates were

miscalculated, is a highly complex exercise that requires skills far beyond those of individual

litigants. This lends extra weight to the majority's findings as to superiority.

B. Systemic Complaint

The second factor I propose adding – whether the issue in the appeal is a systemic

complaint – is a distinct inquiry from the numerosity prong of the class certification test set out

under Rule 23(b), where the concerns are more related to whether the class is so numerous as to

make individual adjudication of claims at the Court impractical. The systemic-complaint factor

looks at the question from VA's perspective – are there so many claims at VA involving this issue

that this decision will have a significant effect on the

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