Petition for Writ of Certiorari — Victor B. Skaar, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefFeb 24, 2023

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No. 22-____

IN THE

Supreme Court of the United States

————

VICTOR B. SKAAR,

Petitioner,

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

LYNN K. NEUNER

ANTHONY C. PICCIRILLO

SIMPSON THACHER &

BARTLETT LLP

425 Lexington Ave.

New York, NY 10017

(212) 455-2000

lneuner@stblaw.com

MICHAEL J. WISHNIE

Counsel of Record

MEGHAN E. BROOKS

VETERANS LEGAL

SERVICES CLINIC

JEROME N. FRANK

LEGAL SERVICES ORG.

P.O. Box 209090

New Haven, CT 06520

(203) 432-4800

michael.wishnie@yale.edu

Counsel for Petitioner

February 24, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Congress established the United States Court of

Veterans Appeals (Veterans Court) and granted it

“exclusive jurisdiction to review adverse decisions of

the Board of Veterans’ Appeals” (Board), a component

of the Department of Veterans Affairs (VA). 38 U.S.C.

§ 7252. After VA acknowledged “that the Veterans

Court has authority to certify a class for class action

or similar aggregate resolution procedure,” Monk v.

Shulkin, 855 F.3d 1312, 1318 (2017), the Veterans

Court promulgated rules for class practice.

Petitioner Victor B. Skaar is a veteran of the U.S.

Air Force who was exposed to radiation at Palomares,

Spain, where he and about 1,400 other airmen worked

as a unit to clean up after a military nuclear accident.

In 2019, VA denied his claim for benefits, relying on

a flawed methodology that VA has used to calculate

the radiation exposure of each Palomares veteran.

On appeal, the Veterans Court certified a class of

Palomares veterans subject to that methodology

whose disability claims have been or will be denied,

then held that VA had failed to justify its reliance on

the methodology. A Federal Circuit panel reversed the

class certification order. It held Section 7252 makes

exhaustion a jurisdictional requirement and thus the

Veterans Court may not include in the class veterans

who have not yet received a “decision of the Board,”

even as an exercise of its authority under the All Writs

Act, 28 U.S.C. § 1651(a). By a 7-5 vote, a divided

Federal Circuit denied rehearing en banc. The question

presented is:

Does the Veterans Court have statutory or inherent

authority to include veterans whose individual claims

are not yet exhausted in a class seeking injunctive

relief, where the court has jurisdiction over a named

representative's claim?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

STATUTORY PROVISIONS INVOLVED ..........

INTRODUCTION ................................................

STATEMENT ......................................................

A. Statutory and Regulatory Background ....

B. Factual Background .................................

C. Proceedings Before the VA .......................

D. The Veterans Court’s Certification Order

and Merits Decision ..................................

E. The Federal Circuit’s Decision .................

REASONS FOR GRANTING THE PETITION....

I. The Federal Circuit’s Decision Is Wrong.

A. The Federal Circuit’s Decision Usurps

the Veterans Court’s Statutory and

Inherent Authority ..............................

B. The Federal Circuit’s Decision is Inconsistent with This Court’s Precedent ....

II. The Federal Circuit’s Decision Will

Cause Substantial Harm to Veterans ......

A. Precedential Decisions Are an Inadequate Alternative to Aggregation .......

(iii)

TABLE OF CONTENTS—Continued

Page(s)

B. The Federal Circuit’s Decision Will

Exacerbate Administrative Backlog

at VA ....................................................

C. The Federal Circuit’s Decision Will

Improperly Shield VA from Claims for

Systemic Relief ....................................

CONCLUSION ....................................................

APPENDIX

TABLE OF AUTHORITIES

CASES

Page(s)

Aiken v. Obledo,

442 F. Supp. 628 (E.D. Cal. 1977) ............

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ...................................

Beattie v. CenturyTel, Inc.,

511 F.3d 554 (6th Cir. 2007) .....................

Beaudette v. McDonough,

34 Vet. App. 95 (2021), appeal pending,

No. 22-1264 (Fed. Cir. Dec. 15, 2021) ......

Boechler, P.C. v. Comm’r of Internal Revenue,

142 S. Ct. 1493 (2022) ...............................

Califano v. Yamasaki,

442 U.S. 682 (1979) .............................. 12, 21-24

F.T.C. v. Dean Foods Co.,

384 U.S. 597 (1966) ................................... 18, 24

Fort Bend Cnty., Texas v. Davis,

139 S. Ct. 1843 (2019) ...............................

Freund v. McDonough,

35 Vet. App. 466 (2022), appeal pending,

No. 23-1387 (Fed. Cir. Jan. 13, 2023) ...... 30-31

Freytag v. Comm’r,

501 U.S. 868 (1991) ...................................

George v. McDonough,

142 S. Ct. 1953 (2022) ............................... 26, 28

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Hill v. Sullivan,

125 F.R.D. 86 (S.D.N.Y. 1989) ...................

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) .................

Johnson v. Robison,

415 U.S. 361 (1974) ................................... 5, 17

Matthews v. Eldridge,

424 U.S. 319 (1976) ...................................

Monk v. Shulkin,

855 F.3d 1312 (Fed. Cir.

2017) .......................... 3, 7, 11, 18, 20, 26, 27, 29

Nehmer v. U.S. Veterans’ Admin.,

118 F.R.D. 113 (N.D. Cal. 1987) ........... 5, 17, 21

Newkirk v. Pierre,

No. 19-cv-4283, 2020 WL 5035930

(E.D.N.Y. Aug. 26, 2020) ..........................

Pa. Bureau of Corr. v. U.S. Marshal Svc.,

474 U.S. 34 (1985) .....................................

R.F.M. v. Nielsen,

365 F. Supp. 3d 350 (S.D.N.Y. 2019)........

Roche v. Evaporated Milk Ass’n,

319 U.S. 21 (1943) ..................................... 18, 24

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) ...................................

Skaar v. McDonough,

48 F.4th 1323 (Fed. Cir.

2022) ..... 1, 7, 8, 10-12, 14, 15, 20, 22, 23, 25, 26

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Skaar v. McDonough,

57 F.4th 1015 (Fed. Cir. 2023) ................. 1, 12

Skaar v. Wilkie,

31 Vet. App. 16 (2019) ..............................

Skaar v. Wilkie,

32 Vet. App. 156 (2019) ......... 1, 8-11, 14, 23, 29

Skaar v. Wilkie,

33 Vet. App. 127 (2020) ................. 1, 7-9, 11, 27

Smith v. Berryhill,

139 S. Ct. 1765 (2019) ...............................

Staab v. McDonald,

28 Vet. App. 50 (2016) ..............................

United States v. New York Tel. Co.,

434 U.S. 159 (1997) ...................................

United States v. Wong,

575 U.S. 402 (2015) ...................................

United States ex rel. Sero v. Preiser,

506 F.2d 1115 (2d Cir. 1974) ....................

Vietnam Veterans of Am. v. Dep’t of Def.,

453 F. Supp. 3d 508 (D. Conn. 2020) .......

Wayne State Univ. v. Cleland,

440 F. Supp. 811 (E.D. Mich. 1977) ......... 5, 17

Weinberger v. Salfi,

422 U.S. 749 (1975) ................................... 22, 23

Westchester Indep. Living Ctr., Inc. v.

State Univ. of New York, Purchase Coll.,

331 F.R.D. 279 (S.D.N.Y. 2019) ................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Wolfe v. McDonough,

28 F.4th 1348 (Fed. Cir. 2022) ............. 3, 26, 27

Wolfe v. McDonough,

34 Vet. App. 162 (2021) ............................ 7, 27

Wolfe v. Wilkie,

32 Vet. App. 1 (2019) ................................ 3, 26

CONSTITUTION

U.S. Const. art. I........................................... 5, 19

U.S. Const. art. III ........................................

STATUTES AND REGULATIONS

28 U.S.C. § 1254(l) ........................................

28 U.S.C. § 1367 ........................................... 13, 20

28 U.S.C. § 1367(a) ..............................................

38 U.S.C. § 1112(c)(3)(B)(vi).........................

38 U.S.C. § 7104 ...........................................

38 U.S.C. § 7252 .................... 1, 4-6, 13, 14, 16, 25

38 U.S.C. § 7252(a) ....................... 3, 10, 11, 18, 21

38 U.S.C. § 7266 ........................................... 6, 25

38 U.S.C. § 7292 ...........................................

5, 6

38 U.S.C. § 7292(c) .......................................

All Writs Act, 28 U.S.C.

§ 1651(a) .................. 1, 3, 4, 11-13, 17-19, 21- 24

Further Consolidated Appropriations Act of

2020, Pub. L. No. 116-94, Division F,

Title III, 133 Stat. 2534, 2810 ..................

TABLE OF AUTHORITIES—Continued

Page(s)

Pub. L. 117-168, Title IV, § 402(b), Aug. 10,

2022, 136 Stat. 1780 .................................

Social Security Act § 205(g), 42 U.S.C.

§ 405(g) .......................................................... 21, 22

Veterans Judicial Review Act, Pub. L. No.

100-687, 102 Stat. 4105 (1988) ... 1, 5, 6, 15, 16, 17

38 C.F.R. § 3.309(d) ......................................

38 C.F.R. § 3.311 .......................................... 9, 10

38 C.F.R. § 3.311(c)(1)(i) ...............................

38 C.F.R. § 14.363 ........................................

38 C.F.R. § 20.1303 .................................... 2, 6, 26

RULES

Fed. R. Civ. P. 23 ..........................................

Vet. App. R. 22 ..............................................

Vet. App. R. 23 .............................................. 7, 16

OTHER AUTHORITIES

122 Cong. Rec. S16,345 (June 3, 1976) ........

Adam S. Zimmerman, Exhausting Government Class Actions, U. Chi. L. Rev. Online

(Oct. 20, 2022) ..................................... 13, 20, 26

Adam S. Zimmerman, The Class Appeal, 89

U. Chi. L. Rev. 1419 (2022) ....................... 18, 27

Barton F. Stichman, The Veterans’ Judicial

Review Act of 1988: Congress Introduces

Courts and Attorneys to Veterans’ Benefits

Proceedings, 73 Adm. Law Rev. 365 (1989)

TABLE OF AUTHORITIES—Continued

Page(s)

Board of Veterans’ Appeals – Decision Wait

Times, U.S. Dep’t of Veterans Affs.,

https://www.bva.va.gov/decision-wait-tim

es.asp (last visited on Feb. 22, 2023) .......

Court of Appeals for Veterans Claims

Fiscal Year 2023 Budget Estimate

(March 28, 2023) .......................................

Dave Philipps, The Unseen Scars of Those

Who Kill Via Remote Control, N.Y. Times

(April 15, 2022), https://www.nytimes.

com/2022/04/15/us/drones-airstrikes-ptsd.

html ...........................................................

Further Consolidated Appropriations Act of

2020, Hearing on H.R. 1865 Before the H.

Comm. on Appropriations, Subcomm. on

Military Construction, Veterans Affairs,

and Related Agencies (2019) ....................

Judicial Review of Veterans Claims: Hearing on H.R. 1959 Before the Subcomm.

On Over-sight and Investigations of the

H. Comm. on Veterans’ Affairs, 98th

Cong. (1983) ..............................................

Maureen Carroll, Aggregation for Me, but

Not for Thee: The Rise of Common Claims

in Non-Class Litigation, 36 Cardozo L.

Rev. 2017 (2015)........................................

1 Newberg and Rubenstein on Class Actions

(6th ed.) .....................................................

S. Rep. No. 100–418 (1988) ..........................

TABLE OF AUTHORITIES—Continued

Page(s)

Veterans Benefits Administration Reports:

Claims Inventory, U.S. Dep’t of Veterans

Affs. (current as of Feb. 18, 2023),

https://www.benefits.va.gov/reports/deta

iled_claims_data.asp .................................

Veterans Benefits Administration Reports:

Detailed Claims Data, U.S. Dep’t of

Veterans Affs. (current as of Feb. 18,

2023), https://www.benefits.va.gov/repor

ts/detailed_claims_data.asp .....................

PETITION FOR A WRIT OF CERTIORARI

Petitioner Victor B. Skaar respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Federal Circuit

in this case.

OPINIONS BELOW

The decision of the Federal Circuit (App. 16a) is

reported at Skaar v. McDonough, 48 F.4th 1323 (Fed.

Cir. 2022). The decision of the Federal Circuit denying

Petitioner’s combined petition for panel rehearing and

rehearing en banc (App. 1a) is reported at 57 F.4th

1015 (Fed. Cir. 2023).

The class certification decision of the Court of

Appeals for Veterans Claims (App. 95a) is reported at

Skaar v. Wilkie, 32 Vet. App. 156 (2019) (en banc), and

the merits decision (App. 39a) is reported at 33 Vet.

App. 127 (2020). The decisions of the Board of

Veterans’ Appeals are unreported and reproduced at

App. 216a and App. 230a.

JURISDICTION

The Federal Circuit entered judgment on September

8, 2022. App. 16a. The Federal Circuit denied

Petitioner’s combined petition for panel rehearing and

rehearing en banc on January 17, 2023. App. 3a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case primarily concerns the Veterans Court’s

judicial review statute, 38 U.S.C. § 7252, as supplemented by its authority under the All Writs Act, 28

U.S.C. § 1651(a). Relevant statutory provisions and

regulations are reproduced at App. 249a.

INTRODUCTION

In 1966, a B-52 Bomber collided with another Air

Force plane over the coast of Palomares, Spain. Two

thermonuclear bombs fell over the Spanish countryside,

resulting in non-nuclear explosions that spread radioactive plutonium dust throughout the air. Chief

Master Sergeant Victor Skaar, the petitioner in this

case, was one of approximately 1,400 airmen deployed

to clean up the debris.

Mr. Skaar and many of his fellow servicemembers—

the Palomares veterans—have developed cancers and

other radiogenic conditions. For decades, VA has

refused to recognize the severity of radiation exposure

at Palomares and denied the disability compensation

claims of these veterans. In his own case, Mr. Skaar

eventually introduced expert testimony from distinguished nuclear physicists to challenge the radiation

dose estimate methodology that VA applies to evaluate

and adjudicate Palomares veterans’ claims. After first

certifying a class of those who have been or will be

subjected to this flawed methodology, the Veterans

Court found VA’s methodology unjustified.

The Palomares veterans are now in their 70s and

80s. Many, like Mr. Skaar, suffer from conditions that

VA still does not treat as presumptively service

connected. Yet VA continues to apply its same deficient methodology for calculating radiation exposure,

leaving the Palomares veterans with few mechanisms

for redress in light of the Federal Circuit’s decision

denying them access to class-wide relief. Decisions of

the Board of Veterans’ Appeals are by rule not

precedential. See 38 C.F.R. § 20.1303. Exacerbating

this issue, the Federal Circuit has recognized that VA

engages in strategic mooting of specific veterans’ appeals

to avoid precedential decisions by the Veterans Court,

see Monk v. Shulkin, 855 F.3d 1312, 1320–1321 (Fed.

Cir. 2017), and has stated that Veterans Court

decisions are not even binding on the VA. Wolfe v.

McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022).

Moreover, VA has a history of failing to implement

those Veterans Court precedents that exist. See, e.g.,

Wolfe v. Wilkie, 32 Vet. App. 1, 33 (2019). Palomares

veterans developed their conditions from operations

they conducted as a unit and they are harmed by a

common VA error. Yet the Federal Circuit’s holding,

which limited the class to veterans with appeals

pending before the Veterans Court, would require that

each Palomares veteran perfect their administrative

appeals and receive a Board decision one by one—

every man and woman for themselves.

To reach its holding, the Federal Circuit misinterpreted the jurisdictional provision of the Veterans

Judicial Review Act (VJRA), 38 U.S.C. § 7252(a),

imposing a cramped construction of the judicial power

conferred on the Veterans Court by Congress. The

Federal Circuit construed the requirement of a

“decision of the Board” as a jurisdictional exhaustion

requirement that applies to each and every absent

class member—here, hundreds of elderly, disabled

veterans, many of whom lack access to counsel and the

scientific experts necessary to mount individual challenges to the same faulty VA methodology. However,

for an injunction-only class, the requirement of exhausting administrative remedies is met when the named

class representative has a “decision of the Board.” The

statute imposes no further jurisdictional requirement

on absent class members. And as five dissenting

judges of the Federal Circuit explained, the Veterans

Court also has authority under the All Writs Act, 28

U.S.C. § 1651(a), to aggregate claims pending in the

VA system in aid of its prospective jurisdiction over

those claims. App. 7a.

By stripping the Veterans Court of this power, the

Federal Circuit’s decision will also worsen VA’s already

massive administrative backlog—there are 745,051

pending claims and an additional 194,467 backlogged

claims (those pending for longer than 125 days)—

harming veterans inside and outside the class by requiring them to litigate repeated individual challenges to

common errors of law or fact. See Veterans Benefits

Administration Reports: Detailed Claims Data, U.S.

Dep’t of Veterans Affs. (current as of Feb. 18, 2023),

https://www.benefits.va.gov/reports/detailed_claims_

data.asp.

Left undisturbed, the Federal Circuit’s decision

effectively denies the Veterans Court its power to

aggregate claims and certify an injunctive class action,

even where necessary to effectively resolve common

errors in VA adjudications and enforce its decisions

through class-wide relief. As five judges of the

Federal Circuit concluded in dissenting from denial of

rehearing en banc, the decision below is error several

times over—it departs from the text of Section 7252,

ignores the separate statutory authority of the All

Writs Act, and misreads this Court’s precedents. Most

importantly, the decision imperils the claims of

veterans who risked their lives during a Cold War-era

nuclear clean-up nearly 60 years ago.

STATEMENT

A. Statutory and Regulatory Background

From the American Revolution until the late 1980s,

executive branch decisions on individual veteran benefits applications were exempt from judicial review.

In this period, district courts nevertheless heard

collateral challenges to VA laws or policies, including

constitutional claims. See Johnson v. Robison, 415

U.S. 361 (1974). District courts heard a number of

these challenges as class actions. See, e.g., Nehmer v.

U.S. Veterans’ Admin., 118 F.R.D. 113 (N.D. Cal.

1987); Wayne State Univ. v. Cleland, 440 F. Supp. 811

(E.D. Mich. 1977). Apart from these limited circumstances, however, VA and its predecessor agencies

operated with little judicial oversight. See Barton F.

Stichman, The Veterans’ Judicial Review Act of 1988:

Congress Introduces Courts and Attorneys to Veterans’

Benefits Proceedings, 73 Adm. Law Rev. 365, 366 (1989).

That changed in 1988, when Congress enacted the

VJRA. The VJRA established judicial review of

individual veterans’ benefits decisions for the first time

in history. Pub. L. No. 100–687, 102 Stat. 4105 (1988).

As one member of Congress remarked in the lead up

to the law’s passage, “[i]t is time to bring our

veterans under the broad umbrella of constitutional

and statutory protections that shield every other

American from the arbitrary and capricious decisions

of the Federal bureaucracy.” Judicial Review of

Veterans Claims: Hearing on H.R. 1959 Before the

Subcomm. On Oversight and Investigations of the H.

Comm. on Veterans’ Affairs, 98th Cong. 7 (1983)

(statement of Rep. LaFalce). Congress channeled this

review of VA decisions into a new Article I court, the

Veterans Court, the decisions of which are reviewable

by the Federal Circuit. See 38 U.S.C. §§ 7252, 7292.

The purpose of the VJRA, evident in its text and

history, was to expand the previously limited judicial

review of issues related to veterans’ benefit claims.

In particular, Congress intended the VJRA to

authorize Administrative Procedure Act (APA) style

review of VA decisions, and it accordingly modeled the

Veterans Court’s scope of review closely on that of the

APA. Indeed, prior to the VJRA’s enactment, members

of Congress had criticized VA’s judicial immunity with

respect to veterans benefits decisions for violating “the

principle of the Administrative Procedures Act.” 122

Cong. Rec. S16,345 (June 3, 1976) (statement of Sen.

Hart). In 1988, the Senate Report on the final

bill re-affirmed the “Committee’s intention that the

[Veterans] court shall have the same authority as it

would in cases arising under the APA to review and

act upon questions other than matters of material fact

made in reaching a decision on an individual claim for

VA benefits . . .” S. Rep. No. 100–418, at 60 (1988).

Today, a veteran seeking service-connected disability

compensation and other benefits applies to a VA Regional

Office, which adjudicates the claim. A veteran unsatisfied with VA’s decision may appeal to the Board of

Veterans’ Appeals, staffed by administrative Veterans

Law Judges. 38 U.S.C. § 7104.1 Board decisions are

non-precedential and binding only on the individual

veteran. 38 C.F.R. § 20.1303. Veterans may appeal an

adverse Board decision to the Veterans Court within

120 days. 38 U.S.C. § 7266. The Veterans Court has

exclusive jurisdiction to review decisions of the Board,

id. § 7252, and its decisions are reviewable on appeal

to the Federal Circuit. Id. § 7292.

In 2017, the Secretary of Veterans Affairs acknowledged that the Veterans Court has the authority to

A veteran on the simplest Board review track currently waits

440 days for a decision. See Board of Veterans’ Appeals – Decision

Wait Times, U.S. Dep’t of Veterans Affs., https://www.bva.va.

gov/decision-wait-times.asp (last visited on Feb. 22, 2023).

certify class actions for aggregate resolution of

systemic VA errors. See Monk, 855 F.3d at 1318. The

Veterans Court has since promulgated rules for class

practice, Vet. App. R. 22, 23, and Congress has

endorsed the practice, appropriating funds for a

Special Master and staff to assist the court in

managing class actions.2

B. Factual Background

Petitioner Victor Skaar is an Air Force veteran who,

along with nearly 1,400 fellow service members, participated in the U.S. military’s cleanup of radioactive

debris following a 1966 nuclear accident at Palomares,

Spain. App. 19a. His unit worked, lived, and slept on

the site for months, picking up wreckage by hand and

shoveling away soil contaminated with radioactive

plutonium and other radiogenic materials, largely

without protective equipment. Two years after the

accident the Air Force concluded its limited monitoring of only a small number of Palomares veterans,

including Mr. Skaar. App. 53a. The Air Force assured

Mr. Skaar that his “health [was] in no jeopardy from

retention of radioactive materials as a result of

See Further Consolidated Appropriations Act of 2020,

Hearing on H.R. 1865 Before the H. Comm. on Appropriations,

Subcomm. on Military Construction, Veterans Affairs, and

Related Agencies at 2 (2019) (statement of Chief Judge Robert N.

Davis requesting funding for Special Master and staff) with

Further Consolidated Appropriations Act of 2020, Pub. L. No.

116-94, Division F, Title III, 133 Stat. 2534, 2810 (appropriating

full amount sought); see also Court of Appeals for Veterans

Claims Fiscal Year 2023 Budget Estimate at 7 (March 28, 2022)

(noting that in FY 2021, Veterans Court “contracted for the

services of a Special Master to support a class action filed at the

Court.”). That Special Master was Thomas Griffith, former judge

of the U.S. Court of Appeals for the D.C. Circuit. See Wolfe v.

McDonough, 34 Vet. App. 162 (2021).

participation in the [Palomares cleanup] operation.”

Id.

Today, Mr. Skaar suffers from leukopenia (a

condition that can be caused by exposure to radiation)

and his skin cancer is in remission. App. 19a, 67a.

While Mr. Skaar and other Palomares veterans were

undisputedly exposed to dangerous nuclear radiation

at Palomares, for decades VA denied them benefits

for radiation-related illnesses. App. 100a–104a. VA’s

benefits denials rely on a flawed methodology that

grossly undercounts the amount of radiation to which

Mr. Skaar and his fellow Palomares veterans were

exposed.

C. Proceedings Before the VA

Mr. Skaar and his fellow Palomares veterans have

faced a hostile VA claims process for over fifty years.

Doctors diagnosed Mr. Skaar with leukopenia, a radiogenic condition, in 1998. App. 100a. But when Mr.

Skaar filed a claim for service-connected disability

benefits, VA informed him that he needed to present

additional evidence to link his condition to his service

at Palomares. App. 8a–11a. Such evidence was not

easily available—Palomares veterans had to sue

under the Freedom of Information Act to obtain basic

records related to their radiation exposure. See, e.g.,

Vietnam Veterans of Am. v. Dep’t of Def., 453 F. Supp.

3d 508 (D. Conn. 2020).

VA regulations provide that disability compensation

claims for radiation-related conditions be adjudicated

using dose estimates based in “sound scientific and

medical evidence.” 38 C.F.R. § 3.311(c)(1)(i). VA relies

on a single, uniform methodology to estimate the

amount of radiation to which each Palomares veteran

was exposed. This methodology grossly underestimates the Palomares veterans’ exposure to radiation

by arbitrarily excluding the highest radiation measurements, according to analysis by a Princeton University

nuclear physicist in this case. App. 55a. VA nevertheless accepted the results generated by the flawed

methodology, using them to deny Mr. Skaar’s claim

at the Board. App. 222a, 241a. Mr. Skaar timely

appealed the Board’s decision to the Veterans Court.

D. The Veterans Court’s Certification Order

and Merits Decision

At the Veterans Court, Mr. Skaar moved for class

certification. He sought to challenge VA’s uniform

methodology for calculating the radiation exposure at

Palomares on behalf of himself and all other similarly

affected Palomares veterans with radiogenic conditions

whose claims had been or would be denied. App. 96a.

The en banc Veterans Court first ordered a limited

remand, because the Board had erred by “fail[ing] to

adjudicate or address” Mr. Skaar’s challenge to its

methodology under § 3.311 “whatsoever.” Skaar v.

Wilkie, 31 Vet. App. 16, 17 (2019). Despite the remand

order, the Board again failed to critically examine the

methodology, including in light of Mr. Skaar’s own

expert evidence. The Board said only that it was “not

in a position to exercise such independent judgment on

Congress recently designated Palomares as a “radiation-risk

activity,” Pub. L. 117-168, Title IV, § 402(b), Aug. 10, 2022, 136

Stat. 1780 (codified at 38 U.S.C. § 1112(c)(3)(B)(vi)), thereby

establishing some Palomares veterans’ conditions as presumptively service-connected. 38 C.F.R. § 3.309(d). For Palomares

veterans like Mr. Skaar, however, whose disabilities are not

presumptively service-connected, VA still adjudicates their serviceconnection by relying on the methodology set out at id. § 3.311.

matters involving scientific expertise” and was “bound

by the regulations of the Department.” App. 221a–222a.

After the limited remand, the Veterans Court sitting

en banc certified the following class:

All U.S. veterans who were present at the

1966 cleanup of plutonium dust at Palomares,

Spain, and whose application for serviceconnected 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 2001.4

App. 166a.

The en banc majority reasoned that 38 U.S.C.

§ 7252(a) does not require every absent class member

to have already obtained a final Board decision in their

individual claim for benefits prior to class certification.

App. 134a–136a. Rather, veterans with claims pending in earlier stages at the VA may be included in a

class as long as the class representative has satisfied

the requirement of a final Board decision on the

common question on which the class is certified, and

the challenged VA conduct is collateral to each member’s

entitlement to benefits. Id. One judge concurred in

The Veterans Court excluded veterans from the class whose

claims had been denied by the Board or the VA Regional Office

but who did not timely appeal further. App. 137a–142a. On Mr.

Skaar’s cross-appeal, the Federal Circuit affirmed this portion of

the decision. App. 36a-38a. Mr. Skaar does not seek further

review of this issue in this petition.

part and dissented in part, App. 167a, and three

judges dissented. App. 181a.

The Veterans Court then returned the case to a

three-judge panel, which subsequently concluded that

the Board had failed to justify its reliance on the

radiation dose estimate methodology. The panel ordered

a remand to the Board to consider on a class-wide

basis whether the methodology constitutes “sound

scientific evidence” as required by law. App. 41a–42a.

E. The Federal Circuit’s Decision

Before the Board could examine VA’s dose methodology, however, VA appealed the class certification

order.5 App. 18a. On September 8, 2022, a panel of the

Federal Circuit reversed. App. 18a. The panel held

that where the named representative has reached the

Veterans Court by appealing a decision of the Board

under 38 U.S.C. § 7252(a), each and every member of

a certified class must individually “satisfy the jurisdictional requirements of having requested a benefit and

of having received a Board decision on that request.”

App. 33a.

The Federal Circuit did not mention, much less

address, Mr. Skaar’s argument that the All Writs Act

authorizes the Veterans Court to aggregate claims in

its prospective jurisdiction. And it rejected Mr. Skaar’s

argument that district courts routinely certify classes

challenging agency action that include claimants who

At the Federal Circuit, as it had earlier in Monk, VA agreed

that the Veterans Court may aggregate appeals. App. 257a n.17

(“For instance, if numerous individuals have received a board

decision on a particular issue and meet the necessary requirements for class certification, the court could certainly certify

those individuals as a class in the interest of promoting the

efficiency of appellate review.”).

have not yet exhausted their administrative remedies.

The court distinguished those cases because, it wrote,

district court jurisdiction over class actions against

government agencies other than the VA arises from

the supplemental jurisdiction statute, 28 U.S.C. § 1367(a).

App. 35a (observing that “Congress has not enacted

any comparable jurisdictional statute for the Veterans

Court.”). Accordingly, the panel vacated the class certification order insofar as it included Palomares veterans

whose claims were not yet exhausted. App. 38a.

Mr. Skaar petitioned for rehearing en banc. App. 1a.

In a 7–5 decision, the Federal Circuit denied the

petition without opinion. App. 2a. Judge Dyk, joined

by four other judges, dissented, concluding that “[t]he

panel decision here effectively eliminates [benefits]

class actions for veterans and in doing so contradicts

established Supreme Court precedent.” App. 3a. Judge

Dyk explained that a “class action mechanism under

the All Writs Act . . . may reach future [VA] claims

over which jurisdiction has not yet been perfected

but would be perfected in the future.” App. 7a. Thus,

the All Writs Act authorizes the Veterans Court to

aggregate claims, including those not yet exhausted,

because they are within the court’s prospective

jurisdiction—a statutory authority that the Federal

Circuit panel simply disregarded.

The dissent also criticized the panel’s interpretation

of this Court’s precedent in Social Security cases. It

observed that this Court “specifically approved classes

including both individuals who had filed claims but

who had not yet secured a decision from the Secretary

and those who had not yet even filed claims but would

do so in the future” in Califano v. Yamasaki, 442 U.S.

682 (1979). App. 9a.

Finally, the dissenting opinion clarified that the

federal supplemental jurisdiction statute, 28 U.S.C.

§ 1367, is irrelevant to the power of district courts to

include persons whose claims are not yet exhausted in

a class action against the government: “District courts

did not, and to this day do not rely on § 1367 in

certifying such class actions. . . . ‘No federal court—not

one—has ever said that [§ 1367] provides a basis to

review federal class actions, asserting federal claims,

against the federal government.’” App. 12a–13a (quoting Adam S. Zimmerman, Exhausting Government Class

Actions, U. Chi. L. Rev. Online (Oct. 20, 2022)).

REASONS FOR GRANTING THE PETITION

Review is warranted because the decision below

undermines the Veterans Court’s statutory jurisdiction and manifestly departs from this Court’s precedents

in analogous contexts. Review is also appropriate

because the Federal Circuit’s decision will cause substantial harm to veterans, many of whom lack access

to legal counsel and scientific experts, by frustrating

their ability to act collectively to hold VA accountable

to law.

I. The Federal Circuit’s Decision Is Wrong.

The Federal Circuit’s decision disregards the

Veterans Court’s authority under Section 7252, the All

Writs Act, and its inherent judicial power to include

absent class members with unexhausted claims in a

class action for injunctive relief. In doing so, the

Federal Circuit deprived the Veterans Court of its

authority to manage and aggregate cases on its docket.

Its decision is also inconsistent with this Court’s

precedents.

A. The Federal Circuit’s Decision Usurps

the Veterans Court’s Statutory and

Inherent Authority.

In curtailing the Veterans Court’s authority to

certify an injunctive class that includes veterans

whose claims are not yet exhausted, the Federal

Circuit committed three errors.

First, the Federal Circuit wrongly held that Section

7252 contains a jurisdictional exhaustion requirement

applicable to absent class members. See App. 33a.

The text of Section 7252 grants the Veterans Court

jurisdiction over “decisions of the Board of Veterans’

Appeals.” It is undisputed that this requirement is met

by the class representative in this case. Mr. Skaar has

a decision of the Board, including on the legal question

on which the class is certified. See App. 113a. Nothing

in the plain language of Section 7252 requires more

than that because, as Judge Dyk explained, the

decision of the Board on the common question is

collateral to the question of class members’ entitlement to benefits based on each individual’s particular

disabilities.6 App. 11a n.5. The Federal Circuit accordingly erred when it read into the text of Section 7252

an additional jurisdictional requirement that all absent

The common question in this case is whether VA may lawfully

rely on the methodology that it used to adjudicate the Palomares

veterans’ claims. This question is collateral to the question of

individual entitlement to benefits because it affects every veteran

whose claim was or will be subject to that methodology, but every

individual veteran must still pursue and receive a VA decision on

invidualized questions, such as the presence of a disability, in

order to prevail on a benefits claim. Accordingly, because Mr.

Skaar seeks to certify a class on a legal question on which there

is a final decision but which would be replicated in future cases,

the administrative exhaustion requirement for future claimants

and its purpose are not implicated.

class members must have exhausted their individual

claims in order to be included in the class. App. 33a.

The Federal Circuit’s extratextual reading is particularly inappropriate given this Court’s repeated warnings

against misconstruing statutory conditions as jurisdictional requirements, in light of the enormous consequences to litigants and the courts themselves. See

Boechler, P.C. v. Comm’r of Internal Revenue, 142 S.

Ct. 1493, 1497 (2022) (determining that the Court

would “bring some discipline to use of the jurisdictional label” because “jurisdictional requirements

cannot be waived or forfeited, must be raised by courts

sua sponte, and . . . do not allow for equitable

exceptions.”); see also Fort Bend Cnty., Texas v. Davis,

139 S. Ct. 1843 (2019) (holding that an exhaustion

requirement was a mandatory claims processing

rule, but it was not jurisdictional); Sebelius v. Auburn

Reg’l Med. Ctr., 568 U.S. 145 (2013) (holding that a

statutory time limit on appeals to a review board was

non-jurisdictional); Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428, 435 (2011) (holding that 120day statutory deadline to appeal to the Veterans Court

is non-jurisdictional). As these cases demonstrate,

finding that a statutory prerequisite to review is

jurisdictional risks waste of judicial resources and

unnecessary abdication of judicial power.

Given the “harsh consequences” of treating a statutory condition as a jurisdictional limit, “the Government

must clear a high bar.” United States v. Wong, 575 U.S.

402, 409 (2015); see also Arbaugh v. Y&H Corp., 546

U.S. 500, 515–16 (2006) (a statutory limitation should

not be treated as jurisdictional unless clearly stated);

Boechler, 142 S. Ct. at 1497. Wong’s “high bar” is not

met in this case. Nowhere in the VJRA is there an

explicit jurisdictional exhaustion requirement that

absent class members must individually satisfy in

order for a class to be certified. See also Vet. App. R.

23 (Veterans Court rule, adopted pursuant to its

statutory rulemaking authority, containing no requirement that absent class members exhaust individual

claims). If Congress intended to cabin the court’s

jurisdiction in the manner the Federal Circuit suggested, it certainly did not clearly state as much.

Moreover, in reading Section 7252 to require that all

absent class members have a “decision of the Board,”

the Federal Circuit’s decision ignores and undermines

the purpose of the VJRA, which was to expand

judicial review for veterans and to afford them

access to court comparable to civilians challenging

agency action. See supra Statutory and Regulatory

Background.

Because Congress looked to the APA when drafting

the VJRA, id., it was well aware that APA class

actions are an important means to hold federal

agencies accountable to law. Mirroring the APA’s

adjudicative procedures, see, e.g., R.F.M. v. Nielsen,

365 F. Supp. 3d 350, 369 (S.D.N.Y. 2019) (“The fact

that the proposed [APA] class includes members at

various stages of administrative review does not

defeat class certification.”), the VJRA permits the

Veterans Court to certify future-oriented classes of

veterans whose claims VA has denied or will deny.7

The class in this case, like many other government benefits

classes, is “future-oriented” because, while all class members are

presently injured by the same agency policy or practice that has

caused or will cause their claims to be denied, some absent

members have not yet exhausted their claims. These class

members are labeled “future” members because the relief they

seek is prospective in nature—an injunction prevents VA from

Before Congress enacted the VJRA, district courts

regularly certified future-oriented classes of veterans

on issues collateral to individual entitlement to

benefits. See, e.g., Nehmer, 118 F.R.D. 113 (APA class

action of Vietnam veterans exposed to dioxins, including those who had not yet applied for VA benefits);

Wayne State Univ. v. Cleland, 440 F. Supp. 811 (E.D.

Mich. 1977) (APA class action of veterans enrolled in

college programs, including those who had not yet

enrolled in the program); Johnson v. Robison, 415 U.S.

361 (1974) (APA class action of conscientious objectors

who were denied benefits, even those who had not yet

applied for them). When drafting the VJRA, Congress

did not intend to reduce already-existing procedural

rights for veterans or limit the means available for

judicial oversight of veterans benefits legislation and

administration. Its intention was the opposite. See

supra Statutory and Regulatory Background.

The VJRA provides more, not less, procedural

protection to veterans than is afforded to other classes

of benefits litigants. See Hodge v. West, 155 F.3d 1356,

1363 (Fed. Cir. 1998) (explaining that, “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.”). Yet the Federal Circuit’s

decision below effectively deprives veterans alone of a

procedural tool that enables better and more efficient

access to justice.

Second, the Federal Circuit’s decision completely

ignores the Veterans Court’s statutory authority

pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a).

applying the same flawed radiation dose estimate methodology to

their claims for benefits when they are adjudicated by VA.

See App. 6a (Dyk, dissenting) (“[T]he [Veterans Court]

class action mechanism is not created by § 7252(a), nor

is it cabined to only those who presently satisfy the

jurisdictional requirements of that section. Rather, the

class action mechanism is created by the All Writs

Act . . .”). The AWA dates to the First Judiciary Act of

1789 and empowers courts to enter necessary orders

in aid of jurisdiction elsewhere conferred. “The All

Writs Act is a residual source of authority to issue

writs that are not otherwise covered by statute.” Pa.

Bureau of Corr. v. U.S. Marshal Svc., 474 U.S. 34, 43

(1985). Importantly, it extends to cases “within [a

court’s] appellate jurisdiction although no appeal has

been perfected.” Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 25 (1943) (emphasis added); see also F.T.C. v.

Dean Foods Co., 384 U.S. 597, 603 (1966) (same).

“The All Writs Act unquestionably applies in the

Veterans Court,” Monk v. Shulkin, 855 F.3d at 1318,

and veterans with claims pending in the VA system

are within that court’s prospective jurisdiction. The

Federal Circuit erred in utterly disregarding Mr.

Skaar’s argument that the AWA supplies statutory

authority to certify an injunctive class that includes

veterans whose claims are not yet exhausted. See

App. 7a (Dyk, dissenting) (“A class action mechanism

under the All Writs Act can be ‘in aid of’ the court’s

jurisdiction . . . and may reach future claims over

which jurisdiction has not yet been perfected but

would be perfected in the future.”); Monk, 855 F.3d at

1318–19 (observing “no limitation in the All Writs

Act precluding it from forming the authoritative basis

to entertain a class action.”); see also Adam S.

Zimmerman, The Class Appeal, 89 U. Chi. L. Rev.

1419, 1452 (2022) (examining Veterans Court authority

and concluding the AWA “extends to writs in aid of a

court’s prospective jurisdiction—that is, over claims

not yet before the court but pending in an administrative agency or lower court.”).8 The Federal Circuit

should have recognized that the All Writs Act allows

the Veterans Court to aggregate claims within the

court’s prospective jurisdiction together with the fullyexhausted claim of Mr. Skaar, where, as here, the

common question is collateral to review of an individual class member’s entitlement to benefits.

Third, and finally, the Federal Circuit erred by

overlooking the Veterans Court’s inherent judicial

power to resolve legal issues in an efficient and

effective manner. The Veterans Court is an Article I

court that possesses inherent powers similar to those

of Article III district courts, because Article I courts

also “exercise the judicial power of the United States.”

Freytag v. Comm’r, 501 U.S. 868, 889 (1991). Article

III district courts regularly certify classes of government benefits claimants that include claimants with

unexhausted claims, see infra Section I(B), invoking

their inherent power to manage and control their own

dockets to do so. See, e.g., Beattie v. CenturyTel, Inc.,

511 F.3d 554, 559 (6th Cir. 2007) (“The district court

maintains substantial discretion in determining whether

to certify a class, as it possesses the inherent power to

manage and control its own pending litigation.”)

(internal quotation omitted).

Article I courts also have inherent judicial power to

employ procedural tools like claim aggregation to

manage their dockets. Just as in Article III courts, the

class mechanism allows for the efficient disposition of

Federal courts have previously relied on the AWA to

aggregate claims. See United States ex rel. Sero v. Preiser, 506

F.2d 1115, 1118, 1125–26 (2d Cir. 1974) (affirming district court

authority under the AWA to provide class-wide habeas corpus

relief when Fed. R. Civ. P. 23 did not apply).

cases, consistent enforcement of court judgments, and

accountability of government agencies. Monk, 855

F.3d at 1320.

The Federal Circuit attempted to distinguish class

certification at the Veterans Court from that in federal

district courts by reasoning that district courts rely

on 28 U.S.C. § 1367 when including absent members

whose claims are not yet exhausted. App. 35a. In

reality, Section 1367 has nothing to do with these

cases. App. 12a (“Section 1367 is meant for cases in

which a district court would not otherwise have

subject matter jurisdiction. But district courts have

long been held to have subject matter jurisdiction over

class members who will only later suffer injury or

otherwise qualify for the class.”); see also Adam S.

Zimmerman, Exhausting Government Class Actions, U.

Chi. L. Rev. Online (Oct. 20, 2022) (“Nothing about the

supplemental jurisdiction statute enlarges or narrows

federal district courts’ power to hear class actions

against the federal government under a federal cause

of action.”). The Federal Circuit’s reliance on 28 U.S.C.

§ 1367 reflected a basic error of federal jurisdiction.

Since the supplemental jurisdiction statute was

enacted in 1990, “[n]o federal court—not one—has

ever said that [§ 1367] provides a basis to review

federal class actions, asserting federal claims, against

the federal government.” Adam S. Zimmerman,

Exhausting Government Class Action, U. Chi. L. Rev.

Online (Oct. 20, 2022). Nor did district courts rely on

the supplemental jurisdiction statute’s predecessor

doctrines, ancillary and pendent jurisdiction, when

certifying future-oriented classes of government benefits

claimants. In fact, before 1990, courts routinely

certified classes against the government that included

persons whose claims were not yet exhausted, without

referencing pendent or ancillary jurisdiction. See, e.g.,

Nehmer, 118 F.R.D. 113 (certifying class challenging

VA’s compensation rules for veterans exposed to Agent

Orange that included veterans with not-yet-exhausted

claims); Hill v. Sullivan, 125 F.R.D. 86, 87–88 (S.D.N.Y.

1989) (certifying class of “widows or widowers who

have or will apply for disability benefits”); Aiken v.

Obledo, 442 F. Supp. 628, 657–58 (E.D. Cal. 1977)

(certifying class of those “whose application for food

stamps was denied, delayed, or never made” and “who

have been or will be affected by” the agency rule at

issue).

Aggregation of claims, in appropriate circumstances, is an indispensable aspect of the judicial

power of the Veterans Court under Section 7252(a),

the All Writs Act, and its inherent authority. Its

exercise vindicates separation of powers principles

and ensures that VA acts in accordance with law. Not

least, it reduces the situations in which men and

women disabled in military service are obliged to

struggle alone to correct recurring VA errors. The

Federal Circuit erred in severely constraining that

judicial power.

B. The Federal Circuit’s Decision is Inconsistent with This Court’s Precedent.

The decision below is also inconsistent with this

Court’s precedent.

First, the Federal Circuit’s holding is contrary to

this Court’s decision in Califano v. Yamasaki, 442 U.S.

682 (1979). Califano addressed whether beneficiaries

who were overpaid under the Social Security Act were

owed the opportunity for an oral hearing before

recoupment of the overpayment, and whether § 205(g),

42 U.S.C. § 405(g) of the Social Security Act permitted

a federal district court to certify a nationwide class to

provide injunctive relief. Id. at 684. Califano held the

district court did not abuse its discretion in certifying

a class that included claimants over whom the court

would have lacked jurisdiction at the time of class

certification, had they asserted individual claims. Id.

at 703–04. As this Court explained, the inclusion of

future claimants in the class was permissible because

specific injunctive relief would only be available to

claimants after they satisfied statutory jurisdictional

prerequisites. Id. at 704 (“[R]ecipients are entitled to

[relief] ‘when they claim a waiver.’ Because the

procedure for claiming waiver involves filing a written

request with the Secretary, we cannot agree that the

Court of Appeals ordered this relief for those who do

not meet the jurisdictional prerequisites of § 205(g).”)

(internal citations omitted).

Contravening Califano, the Federal Circuit held

that the Veterans Court exceeded its jurisdiction in

certifying the class in this case because “the requirements of having requested a benefit and of having

received a Board decision on that request are purely

jurisdictional[.]” App. 33a. The opinion relied on cases

from the Social Security benefits context for the

proposition that exhaustion is a jurisdictional requirement for all class members. App. 34a (citing Matthews

v. Eldridge, 424 U.S. 319, 328 (1976); Weinberger v.

Salfi, 422 U.S. 749, 750, 764 (1975)). But as Judge Dyk

observed, these cases found only that the court lacked

jurisdiction over absent class members because they

had never filed a claim at the agency, not because they

had failed to exhaust administrative remedies. App.

8a (citing Smith v. Berryhill, 139 S. Ct. 1765, 1773

(2019)). The Federal Circuit’s reliance on these cases

was further misplaced because these cases do not

address class action authority under the All Writs Act.

App. 8a–9a (“Weinberger did not consider the All Writs

Act, which . . . provides the Veterans Court the ability

to certify class actions with members whose claims in

the future could come within the court’s jurisdiction.”).

Like in Califano, the Veterans Court here certified

a class that includes individuals who will in the future

meet the statutory jurisdictional prerequisite: a decision by the Board. See App. 166a (defining the class

as: “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 . . .”) (emphasis added). As

Califano held, such a class is permissible because the

absent future class members will not become entitled

to class-wide relief unless and until they have a Board

decision. See 442 U.S. at 703–04.

The outcome in Califano was not isolated or unique.

Consistent with Califano’s holding, district courts routinely certify class actions under the Administrative

Procedure Act that include government benefits

claimants who will in the future present a claim and

receive a final decision of the relevant agency. See, e.g.,

Newkirk v. Pierre, No. 19-cv-4283, 2020 WL 5035930

at *12 (E.D.N.Y. Aug. 26, 2020) (“[t]he fact that the

class includes future members . . . does not pose an

obstacle to certification”) (quoting Westchester Indep.

Living Ctr., Inc. v. State Univ. of New York, Purchase

Coll., 331 F.R.D. 279, 299 (S.D.N.Y. 2019)). See also

App. 35a (“[D]istrict courts routinely certify classes

including future claimants.”). The Federal Circuit

incorrectly attempted to distinguish this common

practice by pointing to the supplemental jurisdiction

statute. See supra Section I(A).

Second, the Federal Circuit’s decision is inconsistent

with this Court’s precedents interpreting the All Writs

Act. See supra Section I(A). The AWA “has served

since its inclusion, in substance, in the original

Judiciary Act as a legislatively approved source of

procedural instruments designed to achieve the

rational ends of law.” United States v. New York Tel.

Co., 434 U.S. 159, 172 (1997) (internal citations

omitted). This Court has repeatedly held that the

AWA grants courts broad, flexible authority to enter

necessary orders in aid of their jurisdiction, including

over claims within their prospective jurisdiction.

See, e.g., Dean Foods Co., 384 U.S. at 603; Roche v.

Evaporated Milk Ass’n, 319 U.S. at 25. Contrary to

these precedents, however, the Federal Circuit held

that the AWA’s authorization to deploy “procedural

instruments” in aid of its prospective jurisdiction does

not permit aggregation of veterans’ claims that are not

yet exhausted with those that are.

The Veterans Court properly certified a mixed class

of exhausted and unexhausted claims, consistent with

decisions of this Court. There is no sound basis for the

Federal Circuit’s rejection of this Court’s holding in

Califano and its AWA precedents, which together

permit injunctive classes against the government that

include future claimants.

II. The Federal Circuit’s Decision Will Cause

Substantial Harm to Veterans.

This case arises within the exclusive jurisdiction of

the Federal Circuit. 38 U.S.C § 7292(c). No other court

will re-consider this erroneous and destructive decision. Moreover, the order denying rehearing en banc

by a vote of 7–5 illustrates sharp disagreement within

the Federal Circuit. The dissenters emphasized that

“[t]he unhappy adverse consequence of eliminating

class actions speaks to the importance of this case.”

App. 6a. The division in the Federal Circuit and the

high stakes of this case confirm that certiorari is

warranted.

Without correction by this Court, the Federal

Circuit’s decision will cause substantial harm to

veterans and limit their access to justice. It will

require that veterans rely on precedential opinions by

the Veterans Court, which are no substitute for classwide injunctive orders. The decision will leave the

interests of countless aging and disabled veterans in

the hands of an overwhelmed, backlogged VA. Finally,

the decision strips the Veterans Court of jurisdiction

to aggregate claims even when the values of fairness,

efficiency, accountability, and access to justice are

advanced.

A. Precedential Decisions Are an Inadequate Alternative to Aggregation.

As a practical matter, the Federal Circuit’s holding

that each class member must individually satisfy

Section 7252’s requirement of a “decision[] of the

Board” severely curtails veterans’ ability to aggregate

their claims before the Veterans Court. As it stands,

only veterans who have received a decision from the

Board and appealed, or and are within the 120-day

window of appeal to the Veterans Court, 38 U.S.C.

§ 7266, may ever join together as a class to pursue

common legal challenges. See also App. 19a. The

Federal Circuit decision will immunize VA illegality

from meaningful judicial review.

Perhaps recognizing the threat to veterans, the

Federal Circuit suggested that aggregation is unnecessary because a precedential decision by the Veterans

Court might address VA illegality just as well. App.

28a–29a. This misses the mark. As Judge Dyk notes

in his dissent, for several reasons, “[p]recedential

decisions of the Veterans Court are no substitute for

the class action mechanism.” App. 5a.

To begin, decisions of the Board of Veterans Appeals

are by rule never precedential. 38 C.F.R. § 20.1303.

The Veterans Court itself issues few precedential

decisions, and the Federal Circuit has recently suggested that even when it does, its decisions are “not

binding on the government.” App. 5a–6a; (citing Wolfe

v. McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022)).

If correct, then only a class decision could bind VA in

like cases.

Moreover, the VA adjudication system’s extreme

backlogs and unique complexity often deter veterans

from pursuing challenges before the Veterans Court.

See George v. McDonough, 142 S. Ct. 1953, 1968 (2022)

(Gorsuch, J., dissenting) (discussing VA's seven-year

backlog, and massive number of improperly denied

benefits claims); Adam S. Zimmerman, Exhausting

Government Class Actions, U. Chi. L. Rev. Online

(Oct. 20, 2022) (“[T]he VA process is sprawling and

Kafkaesque.”).

VA conduct also undercuts the Federal Circuit’s

faith in precedential decisions as an alternative to

aggregation in appropriate cases. VA has a well-known

practice of strategically mooting cases appealed to the

Veterans Court, which prevents the Veterans Court

from issuing precedential decisions in high-impact

cases. See Monk, 855 F.3d at 1320–21. VA also has a

history of failing to implement even those Veterans

Court precedents that exist. See, e.g, Wolfe v. Wilkie,

32 Vet. App. 1, 33 (2019) (“Petitioner Wolfe’s allegations uniquely highlight the inferiority of a precedential

decision. . . . VA could circumvent another decision—

as it allegedly did in Staab—without concern about

enforcement beyond another appellate proceeding.”)

(citing Staab v. McDonald, 28 Vet. App. 50 (2016)),

rev’d on other grounds sub nom. Wolfe v. McDonough,

28 F.4th 1348 (Fed. Cir. 2022); see also Adam S.

Zimmerman, The Class Appeal, 89 U. Chi. L. Rev.

1419, 1463 (2022) (noting Wolfe ruling “that a classwide judgment was the only realistic answer for

unrepresented veterans challenging the VA’s refusal

to follow the court’s precedent.”).

Finally, many veterans lack access to representation due to limitations on attorney’s fees. 38 C.F.R.

§ 14.363. Nor can many individual veterans secure the

assistance of scientific or technical experts able to

meaningfully scrutinize VA practices and methodologies,

as Mr. Skaar managed to do in this case. App. 55a–

56a. And even when equipped with an applicable

precedential decision, unrepresented veterans generally

lack the resources or knowledge to understand the

meaning of a complex legal ruling and litigate its

application to their factual claim on their own. See

Monk, 855 F.3d at 1320–21.

In an appropriate case, the oversight, monitoring,

and enforcement aspects of class practice ensure that

each veteran actually receives the benefit of a favorable judicial ruling. See Maureen Carroll, Aggregation

for Me, but Not for Thee: The Rise of Common Claims

in Non-Class Litigation, 36 Cardozo L. Rev. 2017, 2038

(2015) (“[A] defendant in an individual case might

refuse to apply a system-wide remedy to anyone other

than the plaintiff; under those circumstances, the

other potential claimants (as nonparties) would have

no power to enforce the injunction.”); see also Wolfe v.

McDonough, 34 Vet. App. 162, 168–70 (2021) (appointing retired Judge Thomas Griffith as Special Master

to monitor VA compliance with court’s class-wide order).

The importance of a class mechanism goes beyond

the Palomares veterans seeking relief today. Indeed,

inclusion in an injunctive class action is the only way

in which many veterans will be able to effectively

challenge systemic agency failures or receive the

benefit of a favorable appellate ruling.

B. The Federal Circuit’s Decision Will Exacerbate Administrative Backlog at VA.

Veterans routinely face significant delays in the

adjudication of their disability compensation and pension

claims at VA. As of filing, VA has around 745,000

pending claims. See Veterans Benefits Administration

Reports: Claims Inventory, U.S. Dep’t of Veterans Affs.

(current as of Feb. 18, 2023), https://www.benefits.va.

gov/reports/detailed_claims_data.asp. Inefficiency and

delay at VA are notorious and undermine veterans’

access to benefits. See George v. McDonough, 142 S. Ct.

1953, 1968 (2022) (Gorsuch, J., dissenting) (“Veterans

already face challenges enough in dealing with the

Department. On average, the agency takes seven

years to process their administrative appeals.”).

The class in this case consists of sick, aging veterans

who were exposed to significant radiation without

protective equipment over fifty years ago. They cannot

afford to wait seven years for a fair adjudication of

their individual claims. Without the ability to aggregate their claims, veterans who are subjected to the

same illegal policies and procedures at VA would

have to individually endure the lengthy adjudication

process, just so VA can deny their claims before they

can seek relief in court. The decision below functions

to drive the Palomares veterans and others like them

back into VA’s broken, backlogged administrative

appeals system.

Aggregation of claims, in an appropriate case, can

help alleviate this problem. See Monk, 855 F.3d at

1320 (class actions at the Veterans Court “promot[e]

efficiency, consistency, and fairness, and improv[e]

access to legal and expert assistance by parties with

limited resources”); see also 1 Newberg and Rubenstein on

Class Actions § 1:9 (6th ed.) (“Class actions promote

administrative efficiency . . . by avoiding a multiplicity of actions, by enabling claim processing through

representatives, and by preventing inconsistent

adjudications.”).

In this case, the Veterans Court properly considered

the burden to veterans of fully exhausting agency

review should VA not promptly conform its behavior

to respect the holding of a precedential decision. The

Veterans Court explained, “one need not find that the

Agency is likely to disobey. . . . 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.” App. 161a. Here,

Palomares veterans’ age makes relief through a classwide injunctive order their last best chance at lawful

adjudication of their individual benefits claims.

The delays at VA deny justice to countless veterans.

As the Veterans Court has remarked, class actions

“help [the Veterans Court] consistently adjudicate cases

by increasing its prospects for precedential opinions,”

App. 121a, and they “help ‘prevent VA from mooting

claims scheduled for precedential review.’” Id. (quoting

Monk, 855 F.3d at 1320). In other words, aggregation

“permit[s] the Veterans Court to serve as lawgiver and

error corrector simultaneously, while also reducing

the delays associated with individual appeals.” Monk,

855 F.3d at 1321 (internal quotations omitted).

C. The Federal Circuit’s Decision Will

Improperly Shield VA from Claims for

Systemic Relief.

This Court’s review is also critical because the

Federal Circuit’s ruling leaves veterans as one of the

only groups of benefits recipients in the country

without meaningful access to the class action mechanism. There are numerous types of systemic VA issues

that might benefit from aggregate treatment:

First, as is the case for Mr. Skaar and the Palomares

veterans, class actions would efficiently resolve

common questions that depend on complex evidence.

For example, VA’s routine denial of combat-related

special compensation for drone operators due to its

interpretation of its definition of “combat” may be

resolved by expert evidence showing that the mental

health effects of drone and conventional combat can be

the same. See, e.g., Dave Philipps, The Unseen Scars of

Those Who Kill Via Remote Control, N.Y. Times (April

15, 2022), https://www.nytimes.com/2022/04/15/us/dro

nes-airstrikes-ptsd.html. And as with Palomares, VA

has time and again delayed recognizing the physical

effects of military toxic exposures. Aggregation can

allow veterans to mobilize expert scientific or medical

testimony (typically unavailable to an individual

veteran) on behalf of the group, and thereby better

subject VA methodologies to adversarial testing.

Second, class actions can address the unlawful

effects of faulty VA algorithms or automated procedures. For example, the Veterans Court recently

considered a proposed class of veterans whose benefits

appeals were inappropriately closed without notice as

a result of an automated “sweeping” function in its

database, even though the claimants had submitted

timely substantive appeals. Freund v. McDonough, 35

Vet. App. 466, 470 (2022) (denying class certification),

appeal pending, No. 23-1387 (Fed. Cir. Jan. 13, 2023).

Third, class actions may be the only viable path to

systemic relief where class representatives seek to

challenge VA practices or sub-regulatory guidance,

especially in cases where there is immediate, classwide harm that precedential decisions are ill-suited to

address. In Beaudette v. McDonough, for example, a

blind combat veteran and his wife attempted to appeal

their summary removal from a program that paid her

to care for him, and sought class certification on behalf

of others similarly situated when VA argued the

removal was non-reviewable. 34 Vet. App. 95, 100–01,

105–08 (2021), appeal pending, No. 22-1264 (Fed. Cir.

Dec. 15, 2021). In certifying the class, the Veterans

Court noted both the urgent need for “centralized

relief,” and the necessity for judicial enforcement to

remedy the harm caused to veterans by VA’s

“adjudicative blockade.” Id. at 107.

Class actions in these and similar scenarios could

result in injunctive relief to compel VA to properly

apply the law. The Federal Circuit’s decision imperils

an important means for veterans and the Veterans

Court to hold VA accountable to law.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LYNN K. NEUNER

ANTHONY C. PICCIRILLO

SIMPSON THACHER &

BARTLETT LLP

425 Lexington Ave.

New York, NY 10017

(212) 455-2000

lneuner@stblaw.com

MICHAEL J. WISHNIE

Counsel of Record

MEGHAN E. BROOKS

VETERANS LEGAL

SERVICES CLINIC

JEROME N. FRANK

LEGAL SERVICES ORG.

P.O. Box 209090

New Haven, CT 06520

(203) 432-4800

michael.wishnie@yale.edu

Counsel for Petitioner

February 24, 2023

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: ORDER: Federal Circuit denial

of petition for panel rehearing and

rehearing en banc (Jan 17, 2023) ................

APPENDIX B: OPINION: Federal Circuit

dissent from denial of petition for rehearing

en banc (Jan 17, 2023)..................................

APPENDIX C: OPINION: Federal Circuit

decision (Sept 8, 2022)..................................

16a

APPENDIX D: ORDER AND OPINION:

CAVC merits decision (Dec 17, 2020) ..........

39a

APPENDIX E: ORDER AND OPINION:

CAVC class certification decision (Dec 6,

2019)..............................................................

95a

APPENDIX F: OPINION: Board of Veterans’

Appeals Supplemental Statement of Reasons

or Bases (Unreported) (Mar 26, 2019) ......... 216a

APPENDIX G: ORDER AND OPINION: Board

of Veterans’ Appeals decision (Unreported)

(April 14, 2017) ............................................. 230a

APPENDIX H: Statutory

Provisions Involved:

and

Regulatory

28 U.S.C. § 1651 ........................................... 249a

38 U.S.C. § 7252 ........................................... 249a

38 C.F.R. § 3.311 .......................................... 249a

APPENDIX I: BRIEF: VA Opening Brief to

the Federal Circuit (Jul 16, 2021) ............... 252a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1757, 2021-1812

————

VICTOR B. SKAAR,

Claimant-Cross-Appellant

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellant

————

Appeals from the United States Court of Appeals for

Veterans Claims in No. 17-2574, Chief Judge

Margaret C. Bartley, Judge Amanda L. Meredith,

Judge Michael P. Allen.

————

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

MICHAEL JOEL WISHNIE, Veterans Legal Services

Clinic, Jerome N. Frank Legal Services Organization,

Yale Law School, New Haven, CT, for claimant-crossappellant. Also represented by MEGHAN BROOKS,

NATHAN HERNANDEZ, CAROLINE MARKOWITZ, CAMILLA

REED-GUEVARA. Also represented by LYNN K. NEUNER,

ANTHONY PICCIRILLO, Simpson Thacher & Bartlett

LLP, New York, NY.

SOSUN BAE, Commercial Litigation Branch, Civil

Division, United States Department of Justice,

Washington, DC, for respondent-appellant. Also

represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D.

GRIFFIN, JONATHAN KRISCH, Office of General Counsel,

United States Department of Veterans Affairs,

Washington, DC.

Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,

PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges.

DYK, Circuit Judge, with whom REYNA, STOLL,

CUNNINGHAM, and STARK, Circuit Judges, dissents

from the denial of the petition for rehearing en banc.

PER CURIAM.

ORDER

Victor B. Skaar filed a combined petition for panel

rehearing and rehearing en banc. A response to the

petition was invited by the court and filed by Denis

McDonough. The petition was referred to the panel

that heard the appeal, and thereafter the petition for

rehearing en banc was referred to the circuit judges

who are in regular active service. The court conducted

a poll on request, and the poll failed.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue January 24, 2023.

January 17, 2023

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1757, 2021-1812

————

VICTOR B. SKAAR,

Claimant-Cross-Appellant

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellant

————

Appeals from the United States Court of Appeals for

Veterans Claims in No. 17-2574, Chief Judge Margaret

C. Bartley, Judge Amanda L. Meredith, Judge Michael

P. Allen.

————

DYK, Circuit Judge, with whom REYNA, STOLL,

CUNNINGHAM, and STARK, Circuit Judges, join,

dissenting from the denial of the petition for rehearing

en banc.

This case centrally concerns the availability of class

actions for veterans’ benefits claims. The panel

decision here effectively eliminates such class actions

for veterans and in doing so contradicts established

Supreme Court precedent. We respectfully dissent

from the denial of en banc rehearing.

For many years the system for processing veterans’

claims has been inefficient and subject to substantial

delays to the disadvantage of our nation’s veterans.

The Department of Veterans Affairs (“VA”) currently

has over 685,000 pending disability compensation and

pension claims. See Veterans Benefits Administration

Reports: Claims Inventory, U.S. Dep’t of Veterans Affs.

(current as of Dec. 17, 2022), https://www.benefits.va.

gov/reports/mmwr_va_claims_inventory.asp (hereafter “Claims Inventory”). This backlog causes significant

delays in adjudicating claims, as we concluded in

Ebanks v. Shulkin, 877 F.3d 1037, 1038 (Fed. Cir.

2017). The Committee Report to the Veterans Appeals

Improvement and Modernization Act of 2017, Pub. L.

No. 115-55, 131 Stat. 1105, noted that, at the time,

there were approximately 470,000 pending appeals to

the Board, and the VA projected that, without

changes, by 2027 the wait for claimants to receive a

final appeals decision would be ten years. See H.R.

Rep. No. 115-135, at 5 (2017). The Committee Report

concluded “VA’s current appeals process is broken.” Id.

While there have been some improvements in the

last five years to the number of appeals pending at the

Board of Veterans’ Appeals, there are still about

210,000 appeals pending before the Board. Board of

Veterans’ Appeals: Decision wait times, U.S. Dep’t of

Veterans Affs. (last visited Dec. 12, 2022), https://

www.bva.va.gov/decision-wait-times.asp. The number

of claims awaiting an initial decision from the VA has

more than doubled in the last five years, from about

320,000 in mid-2017 to more than 680,000 in 2022. See

Claims Inventory, supra.

The class action mechanism, first approved in our

decision in Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir.

2017), promised to help ameliorate these problems to

some significant extent, enabling veterans in a single

case to secure a ruling that would help resolve dozens

if not hundreds of similar claims. In Monk, we

recognized that aggregate treatment of claims at the

Veterans Court could “promot[e] efficiency, consistency,

and fairness, and improv[e] access to legal and expert

assistance by parties with limited resources.” Id. at

1320.

The decision here will effectively eliminate class

actions in the veterans’ context by limiting the class to

those who have already appealed and those who have

secured a Board decision and can (indeed must) file

appeals with the Veterans Court within 120 days, a

step that would make them named parties to an

appeal. The majority of claimants—all others with

pending or future claims—would not be eligible for

class treatment.1

The panel opinion here does not suggest that class

actions for veterans are undesirable or of limited

utility but rather rests on the mistaken notion that the

jurisdiction of the Veterans Court over class actions is

limited to situations where the class members had

already secured a final decision from the Board of

Veterans’ Appeals. Skaar v. McDonough, 48 F.4th

1323, 1325 (Fed. Cir. 2022); see 38 U.S.C. § 7252(a)

(granting the Veterans Court “power to affirm, modify,

or reverse a decision of the Board or to remand the

matter, as appropriate”).

Precedential decisions of the Veterans Court are no

substitute for the class action mechanism—those

The only exception would seem to be class actions for petitions

for writs of mandamus, for example, challenging undue delay in

processing claims. That was the situation in Monk itself.

decisions are rare, see Monk, 855 F.3d at 1321, not

binding on the government, see Wolfe v. McDonough,

28 F.4th 1348, 1358 (Fed. Cir. 2022), and, in any event,

ill-suited to resolving factual disputes such as those

involved here. Nor are precedential decisions of this

court. See 38 U.S.C. § 7292(d)(2) (barring Federal

Circuit jurisdiction, in the absence of a constitutional

issue, to “review (A) a challenge to a factual

determination, or (B) a challenge to a law or regulation

as applied to the facts of a particular case”).

The unhappy adverse consequence of eliminating

class actions speaks to the importance of this case.

Review is particularly important since there are

substantial flaws in the panel’s analysis, which is at

odds with Supreme Court decisions.

First, the very purpose of class actions is to bring

before the court claimants who have not perfected

their claims by bringing their own individual suits.

Class actions can be beneficial and superior to

individual litigation precisely because they permit the

aggregation of claims not yet filed in court. Class

actions do not merely consolidate claims already filed

in court, but aggregate in a single suit claims that

have not been filed. See Sullivan v. DB Invs., Inc., 667

F.3d 273, 310-11 (3d Cir. 2011) (en banc) (recognizing

a class action’s ability to achieve “global peace”

including “potential plaintiffs who had not yet filed

cases”).

Second, the class action mechanism is not created by

§ 7252(a), nor is it cabined to only those who presently

satisfy the jurisdictional requirements of that section.

Rather, the class action mechanism is created by the

All Writs Act, 28 U.S.C. § 1651, as our decision in

Monk concluded, and as at least one other circuit has

held in similar circumstances in which Federal Rule of

Civil Procedure 23 is unavailable.2 A class action

mechanism under the All Writs Act can be “in aid of

the court’s jurisdiction, 28 U.S.C. § 1651(a), and may

reach future claims over which jurisdiction has not yet

been perfected but would be perfected in the future.

See Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25

(1943) (“[A circuit court’s] authority is not confined

[under the All Writs Act] to the issuance of writs in aid

of a jurisdiction already acquired by appeal but

extends to those cases which are within its appellate

jurisdiction although no appeal has been perfected.”);

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099

(11th Cir. 2004) (“[T]he [All Writs] Act allows [courts]

to safeguard not only ongoing proceedings, but potential

future proceedings . . . .” (citation and footnotes

omitted)); 16 Charles Alan Wright, Arthur R. Miller,

& Edward H. Cooper, Federal Practice and Procedure

§ 3932 (3d ed. 2022).

Third, the panel’s reading of the Supreme Court’s

decision in Weinberger v. Salfi, 422 U.S. 749 (1975),

and later cases, as barring class actions where all class

members have not yet satisfied the requirements of §

7252 is clearly mistaken. In Weinberger, the court

The Second Circuit has affirmed the certification of a class

action in the habeas context under the All Writs Act. See United

States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974)

(concluding that the All Writs Act enables courts to adopt

“appropriate modes of procedure, by analogy to existing rules or

otherwise in conformity with judicial usage” (quoting Harris v.

Nelson, 394 U.S. 286, 299 (1969))).

Since it certified the class at issue here, the Veterans Court

has adopted a class action rule modeled after Federal Rule of

Civil Procedure 23, which governs class actions in district courts.

See U.S. Vet. App. R. 23.

considered a Social Security Act jurisdictional provision

similar to § 7252(a), providing that “[a]ny individual,

after any final decision of the Secretary [of the

Department of Health, Education, and Welfare] made

after a hearing to which he was a party . . . may obtain

a review of such decision by a civil action commenced

within sixty days after the mailing to him of notice of

such decision.” 42 U.S.C. § 405(g) (1976).3 The panel

concluded that Weinberger held: “[W]hile [the court]

had jurisdiction of the claims of the named appellees

under the provisions of 42 U.S.C. § 405(g), it had no

jurisdiction over the claims asserted on behalf of

unnamed class members.” Skaar, 48 F.4th at 1332

(quoting Weinberger, 422 U.S. at 753) (alterations in

Skaar).

While this is accurate, the panel failed to note that

the reason that the court lacked jurisdiction over the

unnamed class members was that they had not even

filed a claim with the agency. As the Supreme Court

concluded shortly thereafter in Mathews v. Eldridge,

“the complaint [in Weinberger] was found to be

jurisdictionally deficient since it ‘contained no allegations that [unnamed members of the class] ha[d] even

filed an application with the Secretary . . . .”’ 424 U.S.

319,329 (1976) (ellipses in original and modification

omitted) (quoting Weinberger, 422 U.S. at 764); see

also Smith v. Berryhill, 139 S. Ct. 1765, 1773 (2019).

Further, the Supreme Court in Weinberger did not

consider the All Writs Act, which, as discussed above,

provides the Veterans Court the ability to certify class

Section 405(g) has been amended to replace the Secretary

with the Commissioner of Social Security. See 42 U.S.C. § 405(g)

(2020).

actions with members whose claims in the future could

come within the court’s jurisdiction.

In any event, in Califano v. Yamasaki, 442 U.S. 682

(1979), involving the same jurisdictional provision

that was at issue in Weinberger, 42 U.S.C. § 405(g), the

Supreme Court revisited Weinberger and specifically

approved classes including both individuals who had

filed claims but who had not yet secured a decision

from the Secretary and those who had not yet even

filed claims but would do so in the future. The Supreme

Court discussed the earlier case, while making clear

that class action relief was available in the Social

Security context in appropriate circumstances. See

Califano, 442 U.S. at 698-703. The Supreme Court

rejected the argument “that Congress contemplated a

caseby-case adjudication of claims under [§ 405(g)]

that is incompatible with class relief.” Id. at 698-99.

The Court noted that “every Court of Appeals that has

considered this issue has concluded that class relief is

available under [§ 405(g)].” Id. at 699. It explained

that “a wide variety of federal jurisdictional provisions

speak in terms of individual plaintiffs, but class relief

has never been thought to be unavailable under them.”

Id. at 700.

The classes at issue in Califano involved individuals

who had been determined by the Secretary to have

been overpaid Social Security benefits. Id. at 684.

Recipients determined to have been overpaid could

either seek reconsideration to contest the accuracy of

that determination or seek waiver of recovery by the

Secretary. Id. at 686. The Supreme Court explained

that the certified classes at issue in Califano (all those

whom the Secretary had determined had been

overpaid) were overbroad, but only with regard to

those Social Security claimants “who had not filed

10a

requests for reconsideration or waiver in the past and

would not do so in the future” because “[a]s to them, no

‘final decision’ concerning the right to a prerecoupment

hearing has been or will be made.” Id. at 704

(emphasis added); see also id. at 688-89. The Supreme

Court approved classes that included claimants who

had not yet secured a final decision of the Secretary

after a hearing, despite the requirements of § 405(g).

Contrary to the panel opinion,4 exhaustion of administrative remedies (here, securing a final decision of

the Board of Veterans’ Appeals) is not a jurisdictional

requirement under Weinberger and its progeny even

for named plaintiffs. The Supreme Court made this

explicit in the Social Security context only three years

ago in Smith v. Berryhill, in which the Court stated

that the only “‘jurisdictional’ requirement [is] that

claims be presented to the agency.”’ 139 S. Ct. at 1773

(quoting Mathews, 424 U.S. at 328). “[E]xhaustion

itself is not a jurisdictional prerequisite.” Id. at 1779.

Here, the class included individuals who have satisfied

the jurisdictional requirement by filing a claim with

the VA; even if they were named plaintiffs, there

would be no jurisdictional requirement that they

exhaust administrative remedies.

There is, moreover, class action jurisdiction even as

to class members who have not filed claims but who

will do so in the future. The Court in Califano held

that the class members who could file claims “in the

future” had been properly included by the lower

courts. Califano, 442 U.S. at 704. The D.C. Circuit has

See Skaar, 48 F.4th at 1333 n.3 (“We emphasize that the

requirements of having requested a benefit and of having received

a Board decision on that request are ‘purely “jurisdictional” in the

sense that [they] cannot be ‘waived.”’ (quoting Mathews, 424 U.S.

at 328) (emphasis added) (alteration in original)).

11a

confirmed that Califano permits Social Security classes

to include future claimants. Tataranowicz v. Sullivan,

959 F.2d 268, 272 (D.C. Cir. 1992) (approving future

claimants’ membership in a social security class

because “the Court [in Califano] appeared to approve

a class including persons who had not yet satisfied

§ 405(g), but would ultimately do so”). In order to

prevail in their individual cases, the class members

would, of course, have to exhaust administrative

remedies by securing a decision by the Board on their

individual claims in due course, but such exhaustion

is not a requirement for class action resolution of

the common issue—whether the VA’s dose estimate

methodology for Palomares veterans was based on

sound scientific evidence. There is no jurisdictional

requirement that bars a class action by veterans who

have filed claims but have not yet secured final

decisions by the Board.5

Fourth, while admitting that class actions involving

future claimants may be brought in district court,

To be sure, exhaustion of the statutorily prescribed

procedures is only excused where the class claim is collateral to

the merits of any individual benefits determination. See Bowen v.

City of New York, 476 U.S. 467, 483 (1986) (“The claims in this

lawsuit are collateral to the claims for benefits that class

members had presented administratively. The class members

neither sought nor were awarded benefits in the District Court,

but rather challenged the Secretary’s failure to follow the

applicable regulations.”). The claim here is collateral in the same

sense as the claim in Bowen. In Bowen, the claim was that the

Secretary was using an improper standard to adjudicate benefits

claims. So here, as described in Section III, the claim is that an

improper standard is being applied for veterans to demonstrate

service-connected radiation exposure from the Palomares cleanup. The class action will not determine the individual benefit

claims—only the common claim regarding the dose estimate

methodology for Palo-mares veterans.

12a

Skaar, 28 F.4th at 1333-34, the panel mistakenly

attributes that anomaly to the fact that the district

courts have supplemental jurisdiction under 28 U.S.C.

§ 1367, a statute that is inapplicable to the Veterans

Court. The panel opinion states: “While district courts

may indeed exercise jurisdiction over future claimants,

that is because Congress explicitly conferred the district

courts with supplemental jurisdiction encompassing

such claims.” Id. (citing § 1367(a)).

With respect, that is a misunderstanding of the role

§ 1367(a) plays in class action lawsuits. Section 1367

is meant for cases in which a district court would not

otherwise have subject matter jurisdiction. But district

courts have long been held to have subject matter

jurisdiction over class members who will only later

suffer injury or otherwise qualify for the class. Indeed,

§ 1367 was only passed in 1990, and class action

lawsuits with future claimant members were common

before it was passed. See, e.g., Sullivan v. Zebley, 493

U.S. 521, 527 (1990) (citation omitted) (ruling, before

§ 1367 become law, in favor of the “class of all persons

‘who are now, or who in the future will be, entitled to”’

a certain administrative determination from the Social

Security Administration); Califano, 442 U.S. at 704;

Amicus Br. of 15 Admin. L., Civ. Proc., and Fed. Cts.

Professors in Support of Claimant-Cross-Appellant

and Affirmance at 9-13.

District courts did not, and to this day do not, rely

on § 1367 in certifying such class actions.6 See Adam

The opinion cites for support Exxon Mobil Corp. v. Allapattah

Services, Inc., which states “§ 1367 confers supplemental jurisdiction over claims by . . . Rule 23 plaintiffs.” 545 U.S. 546, 560

(2005). But Exxon only held that § 1367 permitted individual

claims to be aggregated in a class action without every claim’s

meeting the amount in controversy requirement for diversity

13a

S. Zimmerman, Exhausting Government Class Action,

U. Chi. L. Rev. Online (Oct. 20, 2022) (“No federal

court—not one—has ever said that [§ 1367] provides a

basis to review federal class actions, asserting federal

claims, against the federal government.”).

III

This case is a particularly appropriate vehicle for

class action treatment. The case arises from an

incident in which approximately 1,400 United States

servicemembers were exposed to radiation following a

nuclear accident. On January 17, 1966, two Air Force

planes collided and dropped four hydrogen bombs near

the small fishing village of Palomares, Spain. The nonnuclear explosives in two of the bombs detonated,

dispersing plutonium dust over miles of the Spanish

countryside. A rotating team of United States servicemembers, including the named plaintiff in this

action—Air Force veteran Victor Skaar—worked for

months cleaning up the radioactive contamination

from the accident.

In 1998, Mr. Skaar was diagnosed with leukopenia—

a low white blood cell count that he claims may be

caused by radioactive exposure. Mr. Skaar alleges in

this suit that, for decades, the VA has employed a

flawed dose estimate methodology that dramatically

underestimated his and other veterans’ radioactive

exposure during the Palomares clean-up and, on that

ground, has denied disability compensation benefits

jurisdiction, so long as one claim met the amount in controversy

requirement. See id. at 549. Exxon does not suggest that without

§ 1367 class actions cannot include absent class members who

have yet to file their own claims. And Exxon did not question the

longstanding practice of district courts of certifying such classes

with future claimants.

14a

that he is entitled to receive. The Secretary confirmed

that 1,388 service members had participated in the

Palomares clean-up. Mr. Skaar noted at least 19

veterans have already filed claims. Mr. Skaar’s claim

is representative of many other veterans who had been

involved in the clean-up, whose claims are at various

stages in the process.

Mr. Skaar’s contention is that the challenged dose

estimate methodology was not based on “actual recorded

dose intakes” for individual Palomares veterans, but,

rather, on “environmental measurements” and other

generalized data, and was then applied broadly to

“subcategories of veterans.” J.A. 6 (citation omitted).

Whether this dose estimate methodology was based on

sound scientific evidence would appear to be a

textbook example of a common question that would be

amenable to aggregate resolution, since “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.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

350 (2011).

Class action treatment of these veterans’ claims

serves the purpose of the Sergeant First Class Heath

Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (“PACT Act”), passed in

response to some of the challenges Palomares veterans

and other veterans with service-related exposure to

toxic materials had faced in receiving benefits from the

VA. Pub. L. No. 117-168, 136 Stat. 1759. Specifically,

§ 402, titled “Palomares or Thule Veterans Act of

2022,” granted a presumption of service connection for

certain disabilities of Palomares veterans. Id. § 402,

136 Stat. at 1780. The report from the House

Committee on Veterans’ Affairs noted the challenges

faced by Palomares veterans in obtaining relief from

15a

the VA, and cited this class action as an example. H.R.

Rep. No. 117249, pt. 1, at 9 (2022). The Report states:

Air Force dosing estimates have also been

challenged by veterans and advocacy groups

in a class action suit led by one participant,

Victor Skaar. In Skaar v. Wilkie, the

[Veterans Court] . . . found that VA had not

fulfilled its legal responsibility to determine

whether the method it uses to assess

Palomares veterans’ radiation exposure is

scientifically sound.

Id.

* * *

For the foregoing reasons, we respectfully suggest

that the panel’s legal analysis is contrary to Supreme

Court precedent and that en banc review should have

been granted.

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2021-1757, 2021-1812

————

VICTOR B. SKAAR,

Claimant-Cross-Appellant

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellant

————

Appeals from the United States Court of Appeals for

Veterans Claims in No. 17-2574, Chief Judge Margaret

C. Bartley, Judge Amanda L. Meredith, Judge Michael

P. Allen.

————

Decided: September 8, 2022

————

CAROLINE MARKOWITZ, Veterans Legal Services

Clinic, Jerome N. Frank Legal Services Organization,

Yale Law School, New Haven, CT, argued for

claimant-cross-appellant. Also represented by MEGHAN

BROOKS, MATTHEW HANDLEY, ADAM HENDERSON,

JOSHUA HERMAN, MICHAEL JOEL WISHNIE. Also argued

by ANTHONY PICCIRILLO, Simpson Thacher & Bartlett

LLP, New York, NY. Also represented by LYNN K.

NEUNER.

17a

SOSUN BAE, Commercial Litigation Branch, Civil

Division, United States Department of Justice,

Washington, DC, argued for respondent-appellant.

Also represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D.

GRIFFIN, JONATHAN KRISCH, Office of General Counsel,

United States Department of Veterans Affairs,

Washington, DC.

JONATHAN D. SELBIN, Lieff, Cabraser, Heimann &

Bernstein, LLP, New York, NY, for amici curiae

Maureen S. Carroll, Zachary Clopton, Brooke D.

Coleman, Robin Effron, Maria Glover, Andrew

Hammond, Deborah R. Hensler, Helen Hershkoff,

Alexandra D. Lahav, Elizabeth G. Porter, Alexander

Reinert, Judith Resnik, Michael D. Sant’Ambrogio,

Joan E. Steinman, Adam S. Zimmerman. Also

represented by YAMAN SALAHI, Edelson PC, San

Francisco, CA.

DORIS JOHNSON HINES, Finnegan, Henderson,

Farabow, Garrett & Dunner, LLP, Washington, DC,

for amicus curiae National Veterans Legal Services

Program.

————

Before MOORE, Chief Judge, NEWMAN and HUGHES,

Circuit Judges.

HUGHES, Circuit Judge.

United States Air Force veteran Victor B. Skaar was

exposed to ionizing radiation while participating in a

cleanup operation in Palomares, Spain. Thirty years

later, he was diagnosed with leukopenia. He filed a

claim with the Department of Veterans Affairs for

service-connected benefits, and the Board of Veterans’

Appeals denied his claim. Mr. Skaar appealed the

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Board’s denial to the United States Court of Appeals

for Veterans Claims. There, he challenged the soundness

of the radiation dose estimates provided by the Air

Force and relied upon by the Board in denying his

claim. By motion for class certification, Mr. Skaar

sought to make this challenge on behalf of all similarly

situated veterans who had participated in the Palomares

cleanup operation. The Veterans Court certified a

class, with Mr. Skaar serving as its representative,

that includes veterans who had not received a Board

decision and that excludes veterans whose claims had

been denied but not timely appealed. See Skaar v.

Wilkie, 32 Vet. App. 156, 201 (2019) (Class Certification).

The Secretary of Veterans Affairs appeals, and Mr.

Skaar cross-appeals, the Veterans Court’s class definition.

On appeal, the Secretary asserts that the Veterans

Court lacked authority to certify a class that includes

veterans who had not received a Board decision—a

statutory prerequisite for the court’s jurisdiction

pursuant to 38 U.S.C. § 7252(a)—because jurisdiction

over Mr. Skaar’s individual claim did not create

further jurisdiction over a class of similarly situated

veterans whose individual claims were beyond the

court’s jurisdiction. We agree. By certifying a class

that includes veterans who had not received a Board

decision, the Veterans Court exceeded its jurisdiction.

We accordingly vacate the court’s class certification

and remand for further proceedings.

On cross-appeal, Mr. Skaar contends that the

Veterans Court should have equitably tolled the

appeal period for veterans whose claims had been

denied but not timely appealed and thus should have

included such veterans as members of the certified

class. We disagree. The Veterans Court rightly declined

to equitably toll the appeal period for claimants who

19a

had not timely appealed their denied claims since none

of the claimants had alleged, let alone established, the

requisite due diligence in pursuing their rights. See

Toomer v. McDonald, 783 F.3d 1229, 1237–38 (Fed.

Cir. 2015). Thus, should the Veterans Court choose to

reconsider on remand whether class certification is

appropriate, the court shall confine the proposed class

to include only Palomares veterans who had timely

appealed, or were still able to timely appeal, Board

decisions denying their radiation exposure claims.

In January 1966, a United States Air Force B-52

bomber carrying four thermonuclear weapons collided

midair with another aircraft. Two of the weapons

crashed into the ground near Palomares, Spain, and

released “radioactive plutonium dust over the area,

contaminating soil and crops, and spreading radioactive debris for miles.” Class Certification, 32 Vet.

App. at 168. “Mr. Skaar, along with nearly 1,400 other

U.S. military personnel,” assisted in the cleanup. Id.

They also provided urine and nasal swab samples

while on site “to assess possible radioactive exposure.”

Id. A group of service members “determined to be

among the most exposed,” including Mr. Skaar, were

monitored for signs of radiogenic conditions for 18 to

24 months after the accident. Id.

Monitoring efforts for Mr. Skaar continued until

December 1967, when the Air Force concluded that his

health was not in “jeopardy from retention of radioactive materials as a result of participation in the

[Palomares cleanup] operation.” Id. (alteration in

original) (citation omitted). Three decades later, in

1998, Mr. Skaar was diagnosed with leukopenia, a

blood disorder characterized by a decrease in white

20a

blood cell count. His doctor opined that exposure to

ionizing radiation “appear[s] to be the positive agent”

that historically causes leukopenia, but “concluded

[that] ‘we have been unable to prove this.’” Id. Mr.

Skaar subsequently filed a claim for service-connected

benefits, which the agency denied in February 2000.

Mr. Skaar moved to reopen his claim in March 2011,

and the regional office requested a radiation exposure

opinion. The Air Force—the service branch responsible for providing the agency with exposure data and

dose estimates for Palomares veterans—estimated

“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.” Id. at 169.

Relying on these estimates, the Under Secretary for

Benefits found it unlikely that Mr. Skaar’s leukopenia

was caused by radiation exposure while in military

service and shared these findings in a dose estimate

opinion provided to the regional office in May 2012.

Shortly thereafter, the regional office denied Mr.

Skaar’s claim, and he appealed the denial to the Board.

“In October 2013, a private physician opined that

Mr. Skaar’s leukopenia ‘is likely related to exposure to

heavy radioactive material in [1966].’” Id. at 170

(alteration in original) (citation omitted). Two months

later, while Mr. Skaar’s appeal was still pending

before the Board, the Air Force discovered errors in its

radiation dose methodology, which was underestimating doses for some individuals including Palomares

veterans. Consequently, “the Air Force intended to

‘formally standardize [its] response methodology for

radiation dose inquiries involving Palomares participants’ by establishing dose estimates based on each

21a

veteran’s specific duties.” Id. (alteration in original)

(citation omitted).

After reevaluating its dose estimate methodology,

the Air Force provided the agency with revised dose

estimates for Mr. Skaar, “assigning him a new

maximum total effective dose of 17.9 rem and a bone

marrow committed dose of 14.2 rem.” Id. The Board

found that these revised dose estimates amounted to

new and material evidence warranting another dose

estimate opinion and remanded the claim. The regional

office obtained and considered a new dose estimate

opinion from August 2016. Nonetheless, the regional

office again found it unlikely that Mr. Skaar’s “leukopenia

was caused by exposure to ionizing radiation during

military service,” and denied his claim. Id. Mr. Skaar

appealed to the Board.

“[I]n September 2016, a private physician opined

that Mr. Skaar’s leukopenia was ‘a result of exposure

to ionizing radiation/plutonium.’” Id. Even so, the

Board denied Mr. Skaar’s claim. In the Board’s view,

the August 2016 dose estimate opinion was “‘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.’” Id. (citation omitted). Mr. Skaar

appealed the Board’s decision denying his claim.

Before the Veterans Court, Mr. Skaar challenged

the agency’s “omission of the Palomares cleanup from

the . . . radiation-risk activities” listed in 38 C.F.R.

§ 3.309(d)(3)(ii), as well as the Board’s reliance on

allegedly unsound dose estimates, in violation of

38 C.F.R. § 3.311(c), “when adjudicating Palomares

veterans’ claims.” Class Certification, 32 Vet. App. at

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171. Mr. Skaar moved to make these challenges on

behalf of similarly situated veterans who were present

during the Palomares cleanup. Id. at 170. The

Veterans Court granted in part Mr. Skaar’s motion

and certified a class to litigate the § 3.311 challenge.1

Id. at 201.

Relying on its existing authority to certify class

actions in the petition context under Monk v. Shulkin,

855 F.3d 1312, 1318–20 (Fed. Cir. 2017), the Veterans

Court determined that it “possess[es] the power to

aggregate claims and certify class actions in the appeal

context.” Class Certification, 32 Vet. App. at 178. The

court further acknowledged that class composition

depends on whether it has jurisdiction over each class

member, that the court has “only one source of

jurisdiction: 38 U.S.C. § 7252,” and that “a final Board

decision operates as the jurisdictional ‘trigger’ that

gives [the Veterans Court] the authority to hear a

particular appeal.” Id. at 180. Breaking down the

proposed class into five subgroups, the court then

considered whether it has jurisdiction over the putative class comprising all veterans who were present at

the 1966 Palomares cleanup that

(1) had filed a radiation exposure claim with

the agency, but had not timely appealed the

regional office’s denial to the Board (past

claimants);

(2) had filed a radiation exposure claim with

the agency and appealed the regional office’s

denial to the Board, but had not timely

The Veterans Court held that Mr. Skaar lacks standing to

bring the § 3.309 challenge but has standing to pursue the § 3.311

challenge. Class Certification, 32 Vet. App. at 172. He has not

appealed this holding.

23a

appealed the Board’s denial to the Veterans

Court (expired claimants);

(3) had appealed, or were still able to timely

appeal, the Board’s denial of a radiation

exposure claim to the Veterans Court

(present claimants);

(4) had filed a radiation exposure claim that

was still pending either before the regional

office or the Board (present-future claimants);

(5) have developed a radiogenic condition but

have not yet filed a radiation exposure claim

with the agency (future-future claimants).

Id. at 179–180. The court determined that it has

jurisdiction over present claimants “because they

possess final Board decisions and either their 120-day

windows to appeal those decisions to [the Veterans]

Court have not yet expired or these claimants have

already appealed within the 120-day time period.” Id.

at 180 (citing 38 U.S.C. §§ 7252(a), 7266(a)).

As for present-future and future-future claimants,

the Veterans Court recognized that these claimants

“pose a unique jurisdictional issue” since none of them

have received final Board decisions. Id. Still, the court

concluded that its “jurisdictional statute does not

prohibit the[] inclusion” of such claimants as class

members. Id. Instead, the Veterans Court held that,

“pursuant to [its] statutory authority under 38 U.S.C.

§§ 7252 and 7261,” it has “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.” Id. (citing Monk, 855 F.3d at 1318).

In the court’s view, “Mr. Skaar, as class representative, ha[d] obtained a final Board decision pursuant to

24a

[§] 7252,” and his “satisfaction of [this] jurisdictional

requirement” vested the court with jurisdiction over

other class members, “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.” Id. at 181–82.

Moreover, the court explained, Mr. Skaar’s Board decision had opened a “jurisdictional door” that allowed

the Veterans Court to “use [its] other authorities, as

explained in Monk [], to aggregate Mr. Skaar’s claims

with those of the remaining class members.” Id. at 181.

Then, turning to Bowen v. City of New York, 476

U.S. 467 (1986) for support, the Veterans Court held

that it has “jurisdiction to certify a class action that

includes members who do not have a final Board

decision” so long as “(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.”

Id. at 184–85. The court applied this standard here,

and determined that it had jurisdiction over presentfuture and future-future claimants “and [need] not

require exhaustion of administrative remedies by each

and every class member.” Id. at 185. The Veterans

Court accordingly included present-future and futurefuture claimants, along with present claimants, in the

class. Id. at 186.

Next considering past and expired claimants, the

court declined to equitably toll the appeal period for

claimants who failed to timely appeal their denied

claims and excluded both subgroups from the proposed

class on that basis. Id. at 189. These claimants, the

25a

court observed, “could have challenged [the agency’s]

treatment of Palomares veterans just like Mr. Skaar,

yet each chose not to.” Id. at 187. And, the court noted,

Mr. Skaar did not present any reason “to depart from

Bove’s principle that the 120-day Notice of Appeal

window to [the Veterans Court] will only be waived

‘when circumstances precluded a timely filing despite

the exercise of due diligence.’” Id. (quoting Bove v.

Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam),

overruled on other grounds by Dixon v. McDonald, 815

F.3d 799 (Fed. Cir. 2016)). Thus, the court confined the

class to present, present-future, and future-future

claimants.

The Veterans Court then invoked Federal Rule of

Civil Procedure 23 “as a guide for class certification in

the appeal context,” and considered whether the class

met the requisites for class certification pursuant to

Rule 23. Id. at 189. Finding that it did, the court

certified the class, excluding past and expired

claimants. Id. at 201. It defined the class as follows:

[a]ll U.S. veterans who were present at the

1966 cleanup of plutonium dust at Palomares,

Spain, and whose application for serviceconnected disability compensation based on

exposure to ionizing radiation [the agency]

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 . . . .

Id. at 189.

A year after certifying the class, the Veterans Court

issued a decision on the merits of Mr. Skaar’s § 3.311

26a

challenge on behalf of the certified class. Skaar v.

Wilkie, 33 Vet. App. 127 (2020) (Merits Decision). The

court held that the Board had “provided an inadequate

statement of reasons or bases for concluding that the

Air Force’s dose estimate constituted sound scientific

evidence.” Id. at 141. And as a result, the court set

aside the April 2017 Board decision denying service

connection for leukopenia and remanded the matter

for the Board to readjudicate Mr. Skaar’s § 3.311

challenge, further stating that “[t]his portion of [its]

decision applies to the class certified in this matter.”

Id. at 143–44, 149. Following its merits decision, the

Veterans Court entered judgment on January 12, 2021

and denied Mr. Skaar’s motion for immediate issuance

of mandate. Judgment at 1, Skaar v. Wilkie, 33 Vet.

App. 127 (2020) (No. 17-2574); Judge’s Stamp Order,

for the Panel, Denying Appellant’s Opposed Motion for

Immediate Issuance of Mandate at 1, Skaar v. Wilkie,

33 Vet. App. 127 (2020) (No. 17-2574).

The Secretary appeals and Mr. Skaar cross-appeals,

both challenging the Veterans Court’s class definition.

Our jurisdiction to review decisions of the Veterans

Court is governed by 38 U.S.C. § 7292. Unlike other

statutory provisions that govern our jurisdiction,

§ 7292 does not expressly premise appellate review on

the finality of the Veterans Court’s decision. Compare

28 U.S.C. § 1295(a)(1) (conferring jurisdiction over “an

appeal from a final decision of a district court”), with

38 U.S.C. § 7292(a) (“After a decision of the [Veterans

Court] is entered in a case, any party to the case may

obtain a review of the decision . . . .”). Nevertheless, we

have “generally declined to review non-final orders of

the Veterans Court.” Williams v. Principi, 275 F.3d

27a

1361, 1363 (Fed. Cir. 2002) (citation omitted). So

“remand orders from the Veterans Court ordinarily

are not appealable because they are not final.” Adams

v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). We

will, however, depart from this strict rule of finality

when the Veterans Court remands a matter for further

proceedings if the following conditions are satisfied:

(1) there must have been a clear and final

decision of a legal issue that (a) is separate

from the remand proceedings, (b) will directly

govern the remand proceedings[,] or, (c) if

reversed by this court, would render the

remand proceedings unnecessary;

(2) the resolution of the legal issues must

adversely affect the party seeking review; and

(3) there must be a substantial risk that the

decision would not survive a remand, i.e., that

the remand proceeding may moot the issue.

Williams, 275 F.3d at 1364 (footnotes omitted). The

class certification satisfies these criteria.

First, the Veterans Court issued a clear and final

decision regarding its jurisdiction to certify a class

that includes veterans who had not received a Board

decision. See Travelstead v. Derwinski, 978 F.2d 1244,

1247–49 (Fed. Cir. 1992) (holding that when “the court

rendered a ‘decision’ interpreting a statute . . . and

compelling action of the Secretary, on remand, . . .

[t]his ‘decision’ was a final disposition of the proceeding,” and was appealable). That decision addressed a

legal issue involving the Veterans Court’s jurisdictional

statute that is separate from the remand proceeding

involving 38 C.F.R. § 3.311(c) and dose estimates.

Compare Class Certification, 32 Vet. App. at 166 (“We

do not today address the merits of Mr. Skaar’s claim.”),

28a

with Merits Decision, 33 Vet. App. at 132 (“Today we

address the merits of Mr. Skaar’s appeal . . . .

Beginning with the class claim concerning radiation

dose estimates, we hold that the Board failed to meet

its obligation under 38 C.F.R. § 3.311(c) to ensure that

dose estimates [the agency] received from the Air

Force constitute ‘sound scientific evidence.’ We will

remand this issue to the Board . . . .”).

Second, the Veterans Court’s resolution of the

jurisdictional issue will adversely affect the Secretary

by requiring the Secretary to expend time and resources

addressing individuals beyond the Secretary’s statutorilypermitted reach, i.e., veterans who have not filed

claims for benefits.2 See 38 U.S.C. § 5101(a)(1)(A);

Travelstead, 978 F.2d at 1248.

The Veterans Court’s resolution of the jurisdictional issue not

only affects the Secretary but also affects Mr. Skaar and similarly

situated Palomares veterans who might benefit from a precedential opinion regarding the § 3.311 challenge. See Merits Decision,

33 Vet. App. at 151 (Meredith, J., concurring in part and

dissenting in part) (“I am compelled to comment that the result

here demonstrates that the en banc Court’s resurrection of the

limited remand mechanism, for the purpose of deciding [Mr.

Skaar’s] motion for class certification, turned out not to be an

effective tool. More than 3 years after [Mr. Skaar] appealed the

April 2017 Board decision, the panel is left with no choice but to

conclude that the Board provided an inadequate statement of

reasons or bases for its decision and to remand the matter for

readjudication—the same relief that the en banc Court could

have, and in my view, should have initially provided. Instead, the

parties and the en banc Court expended considerable time and

resources debating the efficacy of conducting class actions in the

appellate context and the bounds of the Court’s jurisdiction,

without bringing [Mr. Skaar] any closer to receiving a decision

that adequately addresses the merits of whether the dose

estimates relied on by [the agency] are based on a methodology

that complies with 38 C.F.R. § 3.311(c).” (citations omitted)); see

29a

Third, there is a substantial risk that the remand

proceeding may deprive the Secretary of an opportunity to later contest the Veterans Court’s jurisdiction

over the certified class since the Secretary is statutorily precluded from appealing to the Veterans Court

any Board decision, including a grant of the class

claim. See 38 U.S.C. § 7252(a); see also Merits Decision,

33 Vet. App. at 154 (Meredith, J., concurring in part

and dissenting in part) (“[T]he Board’s inadequate

statement of reasons or bases frustrates judicial

review, precluding [the Veterans Court’s] ability to

provide the requested class-wide relief and compelling

[the court] to remand the matter for full readjudication

without retaining jurisdiction. And, [the court] ha[s]

no reason to assume that further adjudication of the

[veteran’s] claim will lead to a final Board decision

adverse to the [veteran] or subsequent appellate

review of the class issue for which he is the representative.”). Thus, we may exercise jurisdiction over the

court’s class certification decision. See Dambach v.

Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000) (“We do

have jurisdiction . . . when there is a statutory

interpretation that will affect the remand proceeding

and that legal issue might evade our future review.”).

also Class Certification, 32 Vet. App. at 209 (Falvey, J.,

dissenting) (“We believe that the majority has created a class that

exceeds our jurisdiction and offers a comparable outcome to

members of that class that a precedential decision could provide

without the manageability and preclusion problems inherent in

class litigation.”); id. at 221 (“If we had an adequate record, a

panel might have, months ago, found that the dose methodology

[the agency] used in Mr. Skaar’s case was flawed and counter to

38 C.F.R. § 3.311. Its decision, a nationwide precedent, would

have fixed any such systemic dose estimate problem and [the

agency] would have been required to apply the Court’s holding

consistently to all veterans’ cases.”).

30a

By statute, we may “review and decide any

challenge to the validity of any statute or regulation or

any interpretation thereof . . . and . . . interpret

constitutional and statutory decisions, to the extent

presented and necessary to a decision.” 38 U.S.C.

§ 7292(c). But our jurisdiction does not extend to

challenges either to factual determinations or to the

application of the law to the facts of a particular

case, absent a constitutional issue. Id. § 7292(d)(2).

Whether the Veterans Court had jurisdiction is a

matter of statutory interpretation, see id. § 7252(a)

(defining the Veterans Court’s jurisdiction), which we

review de novo, In re Wick, 40 F.3d 367, 370 (Fed. Cir.

1994). Likewise, whether the Veterans Court applied

the correct legal standard for equitable tolling is a

question of law we review de novo. James v. Wilkie,

917 F.3d 1368, 1372 (Fed. Cir. 2019).

III

The Veterans Court certified a class that includes

present, present-future, and future-future claimants

but excludes past and expired claimants. The primary

question before us, on appeal and cross-appeal, is

which subgroups of claimants should the Veterans

Court have included in, or excluded from, the certified

class. The Secretary would have us confine the class to

only present claimants, while Mr. Skaar would define

the class broadly to include past, expired, present,

present-future, and future-future claimants. We agree

with the Secretary. The certified class should have

included only present claimants because the Veterans

Court did not have jurisdiction over past, presentfuture, or future-future claimants, and because the

expired claimants cannot benefit from equitable

31a

tolling to revive claims that they could have timely

appealed following the Board’s denial.

The Veterans Court exceeded its jurisdiction when

it certified a class to include veterans who had not

received a Board decision and veterans who had not

yet filed a claim. While the Veterans Court correctly

acknowledged that “a final Board decision operates as

the jurisdictional ‘trigger’ that gives [it] the authority

to hear a particular appeal,” the court held “that

because Mr. Skaar, as class representative, ha[d]

obtained a final Board decision pursuant to [§] 7252,

the jurisdictional door ha[d] been opened, and [the

Veterans Court] may use [its] other authorities, as

explained in Monk [], to aggregate Mr. Skaar’s claims

with those of the remaining class members.” Class

Certification, 32 Vet. App. at 181. This was error. See

Weinberger v. Salfi, 422 U.S. 749, 753 (1975) (“[W]hile

[the court] had jurisdiction of the claims of the named

appellees under the provisions of 42 U.S.C. § 405(g), it

had no jurisdiction over the claims asserted on behalf

of unnamed class members.”).

The Veterans Court cannot predicate its jurisdiction

over the claims of unnamed class members on its

jurisdiction over Mr. Skaar’s claim or its power to

aggregate claims and certify class actions. See Burris

v. Wilkie, 888 F.3d 1352, 1361 (Fed. Cir. 2018) (“[T]he

Veterans Court cannot invoke equity to expand the

scope of its statutory jurisdiction. Indeed, a court

cannot write its own jurisdictional ticket.” (cleaned

up)). Class certification is merely a procedural tool

that allows the court to aggregate claims, see Wick, 40

F.3d at 1370 (explaining that neither the Veterans

Court’s scope of review nor its rules of practice and

procedure “provide an independent basis for jurisdic-

32a

tion”); it does not itself confer on the court jurisdiction

to review individual claims it would otherwise lack,

Chula Vista City School District v. Bennett, 824 F.2d

1573, 1579 (Fed. Cir. 1987) (“The claim of each

member of the class must be examined separately to

determine whether it meets the jurisdictional requirement.”). Nor does our decision in Monk, in which we

held only that the “Veterans Court has the authority

to establish a class action mechanism or other method

of aggregating claims.” 855 F.3d at 1322; id. at 1321–

22 (declining to decide or address the circumstances in

which a class certification would be appropriate).

Monk does not provide a cognizable basis for circumnavigating the limits of the Veterans Court’s statutory

jurisdiction. Cf. Mahaffey v. Sec’y of Health & Hum.

Servs., 368 F.3d 1378, 1381 (Fed. Cir. 2004) (explaining that neither the Court of Federal Claims’ scope of

review nor its rules of practice and procedure confer

authority on a court “to enlarge its jurisdiction”

(citation omitted)). And the Veterans Court cannot

invoke its authority to certify a class action in the

appeal context unless the court has “jurisdiction over

the claim of each individual member of the class.”

Califano v. Yamasaki, 442 U.S. 682, 701 (1979)

(“[C]lass relief is consistent with the need for case-bycase adjudication emphasized by the Secretary, at

least so long as the membership of the class is limited

to those who meet the requirements of [the judicial

review statute]. Where the district court has jurisdiction over the claim of each individual member of the

class, Rule 23 provides a procedure by which the court

may exercise that jurisdiction over the various

individual claims in a single proceeding.” (emphasis

added) (citation omitted)).

Here, the Veterans Court has “only one source of

jurisdiction: 38 U.S.C. § 7252(a).” Class Certification,

33a

32 Vet. App. at 180 (citing Henderson v. Shinseki, 562

U.S. 428, 434 (2011)); see Burris, 888 F.3d at 1357

(“The Veterans Court, as an Article I tribunal, is a

creature of statute by definition. As such, the court

can only act through an express grant of authority

from Congress.” (citations omitted)). This jurisdictional statute empowers the Veterans Court to review

decisions of the Board and confers upon the court “the

power to affirm, modify, or reverse a decision of the

Board or to remand the matter, as appropriate.” 38

U.S.C. § 7252(a) (emphasis added). Thus, the Veterans

Court’s jurisdiction is “premised on and defined by

the Board’s decision concerning the matter being

appealed,” Ledford v. West, 136 F.3d 776, 779 (Fed.

Cir. 1998), where “‘decision’ of the Board, for purposes

of the Veterans Court’s jurisdiction under [§] 7252, is

the decision with respect to the benefit sought by the

veteran,” Maggitt v. West, 202 F.3d 1370, 1376 (Fed.

Cir. 2000) (emphasis added). This means that “a

veteran must first present a request for a benefit to

the Board, then receive a decision on that request, in

order to vest jurisdiction in the Veterans Court to

consider the veteran’s request and arguments in

support thereof.” Id. By definition, therefore, a class

must be limited to veterans who satisfy the jurisdictional requirements of having requested a benefit and

of having received a Board decision on that request.3

We emphasize that the requirements of having requested a

benefit and of having received a Board decision on that request

are “purely ‘jurisdictional’ in the sense that [they] cannot be

‘waived.’” Matthews v. Eldridge, 424 U.S. 319, 328 (1976). Both

the statutory language and the provision’s “placement within the

[Veterans’ Judicial Review Act]” make clear “that Congress

wanted that provision to be treated as having jurisdictional attributes,” since § 7252 “governs [the Veterans Court’s] adjudicatory

capacity.” Henderson, 562 U.S. at 434–35, 439–40 (comparing

34a

See, e.g., Matthews v. Eldridge, 424 U.S. 319, 328

(1976) (“The nonwaivable element is the requirement

that a claim for benefits shall have been presented to

the Secretary. Absent such a claim there can be no

‘decision’ of any type. And some decision by the

Secretary is clearly required by the statute.”); Salfi,

422 U.S. at 750, 764 (“The [d]istrict [c]ourt had no

jurisdiction over the unnamed members of the class

under 42 U.S.C. [§] 405(g), . . . since the complaint as

to such class members is deficient in that it contains

no allegations that they have even filed an application

for benefits with the Secretary, much less that he has

rendered any decision, final or otherwise, review of

which is sought.”).

Thus, the Veterans Court exceeds its jurisdiction

when it certifies a class to include, as it did here,

veterans who have not yet filed a claim—over whom

even the Board would not have jurisdiction, see 38

U.S.C. §§ 7104(a) (jurisdiction of the Board to review

the Secretary’s final decisions), 511 (decisions of the

Secretary)—and veterans who have not received a

Board decision, see id. § 7252(a). That is, the Veterans

Court lacked jurisdiction over past, present-future,

and future-future claimants, since none of these

claimants had received a Board decision. Cf. Wick, 40

F.3d at 370 (“Since it is clear that the action of the

Secretary in denying payment to Wick was not a

decision of the Board, it would seem equally clear that

the court lacks jurisdiction over Wick’s petition from

that denial.”).

§ 7252 with § 7266 and holding that § 7266 is not jurisdictional).

Thus, in relying on Bowen as a basis for jurisdiction over presentfuture and future-future claimants, see Class Certification,

32 Vet. App. at 184, the Veterans Court erroneously conflated

jurisdiction and exhaustion, see Matthews, 424 U.S. at 328.

35a

Mr. Skaar argues that the Veterans Court can

exercise jurisdiction over class members who have

not received Board decisions because district courts

routinely certify classes including future claimants.

Cross-Appellant’s Br. 26–30 (collecting cases). While

district courts may indeed exercise jurisdiction over

future claimants, that is because Congress explicitly

conferred the district courts with supplemental jurisdiction encompassing such claims. See 28 U.S.C.

§ 1367(a) (“[I]n any civil action of which the district

courts have original jurisdiction, the district courts

shall have supplemental jurisdiction over all other

claims that are so related to claims in the action within

such original jurisdiction that they form part of the

same case or controversy . . . . Such supplemental

jurisdiction shall include claims that involve the

joinder or intervention of additional parties.”); Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,

560 (2005) (explaining that “§ 1367 confers supplemental

jurisdiction over claims by . . . Rule 23 plaintiffs,” i.e.,

members of a class action, over which it may lack

original jurisdiction as long as it has original jurisdiction over at least one class member’s claim). Critically,

Congress has not enacted any comparable jurisdictional statute for the Veterans Court. While district

courts may exercise supplemental jurisdiction over

future claimants by virtue of their explicit statutory

authority, the Veterans Court lacks such jurisdictional

authority. Each court is limited to the jurisdiction

bestowed upon it by Congress. Thus, the cases Mr.

Skaar cites about the scope of district court jurisdiction are inapplicable where, as here, the Veterans

Court has its own jurisdictional statute.

We accordingly vacate the Veterans Court’s class

certification. Should the court choose to reconsider on

remand whether class certification is appropriate, the

36a

court shall exclude past, present-future, and futurefuture claimants, since no such claimants have

received a Board decision.

On cross-appeal, Mr. Skaar contends that the

Veterans Court should have included past and expired

claimants as members of the certified class. He

challenges the Veterans Court’s decision declining to

equitably toll the statutory period to appeal for these

claimants. According to Mr. Skaar, the court misconstrued the legal standard for equitable tolling—set out

in Bowen—”as creating a categorical rule that

challenged policies must be ‘secretive’ to grant equitable tolling and waiver of exhaustion,” and then

improperly applied this rule to the “more claimantfriendly [Veterans’ Judicial Review Act].” CrossAppellant’s Br. 46–47. We disagree.4

To benefit from equitable tolling, a claimant must

demonstrate “(1) extraordinary circumstance; (2) due

diligence; and (3) causation.” Toomer, 783 F.3d at

1238; see also Holland v. Florida, 560 U.S. 631, 649

Although we vacate the class certification for lack of

jurisdiction, our decision does not bar the Veterans Court from

considering again on remand whether class certification is

appropriate, provided that the court has jurisdiction over each

individual member of the proposed class. The court could, for

example, consider whether certifying a class of present claimants

is proper. It follows then that our decision to vacate the class

certification does not moot Mr. Skaar’s cross-appeal challenging

the class definition. Thus, we still must consider whether expired

claimants the only other subgroup of claimants, besides present

claimants, that satisfies the jurisdictional requirements under

38 U.S.C. § 7252—were improperly excluded from the certified

class, i.e., whether the court should have tolled the appeal period

for expired claimants.

37a

(2010) (requiring a petitioner to show “(1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and

prevented timely filing” (cleaned up)). We have made

clear that “due diligence must be shown in addition to

an extraordinary circumstance.” Toomer, 793 F.3d at

1238 (cleaned up). We have also acknowledged, as Mr.

Skaar points out, “the need for flexibility,” “for avoiding

mechanical rules,” and for “proceed[ing] on a ‘case-bycase basis.’” Id. at 1239; CrossAppellant’s Br. 49.

Contrary to Mr. Skaar’s contentions, the Veterans

Court suggested neither that Bowen established a

categorical rule restricting equitable tolling to challenges involving “secretive” policies nor that Bowen

dictated the court’s decision. Indeed, it was Mr. Skaar

who had requested that the Veterans Court “equate

[the agency’s] adjudication of Palomares veterans’

claims with the secretive conduct the Supreme Court

found so reprehensible in [Bowen]” and permit equitable tolling for past and expired claimants on this

basis. Class Certification, 32 Vet. App. at 187. And the

Veterans Court unambiguously denied this request.

The court instead identified several examples of the

extraordinary circumstances for which waiver may

be warranted, clarified that these examples do not

present “an exhaustive list because there are no bright

line rules in the equitable tolling context,” and reiterated that “the extraordinary circumstances element

[of equitable tolling] necessarily requires a case-bycase analysis and not a categorical determination.” Id.

(alteration in original) (quoting James v. White, 917

F.3d 1368, 1373 (Fed. Cir. 2019)).

Moreover, the Veterans Court observed that Mr.

Skaar had never alleged that past and expired claimants

“were precluded from timely filing appeals . . . for any

38a

reason other than [the agency’s] historical practice in

adjudicating claims from Palomares veterans.” Class

Certification, 32 Vet. App. at 187–89. And, as the court

correctly reasoned, it’s hardly surprising that the

agency “will always (presumably) adjudicate claims in

accord with its own interpretation of that law and [the

Veterans Court’s] legal pronouncements” “before a

claimant succeeds in changing the law.” Id. at 187. So

“there is no principled way to distinguish” these

claimants from “any other claimants who have been

denied benefits, failed to appeal to [the Veterans]

Court, and later discovered their benefits denial was

based on an incorrect reading of the law.” Id. at 187–

88. Thus, the Veterans Court’s analysis does not

evince any legal error or misinterpretation of the law

surrounding equitable tolling. We conclude that the

court did not err in declining to equitably toll the

appeal period for past and expired claimants and thus

rightly excluded such claimants from the class.

The Veterans Court’s jurisdictional statute limits its

authority to certify a class action in the appeal context,

and the court must have jurisdiction over the claims of

every member of a class the court certifies. By

certifying a class that includes veterans who had not

received a Board decision and veterans who had not

yet filed a claim, the Veterans Court exceeded its

jurisdiction. We vacate the court’s class certification

and remand for further proceedings consistent with

this opinion. Because we vacate the class certification,

we also limit the application of the merits decision to

Mr. Skaar’s claim.

VACATED AND REMANDED

COSTS

No costs.

39a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

————

No. 17-2574

————

VICTOR B. SKAAR,

Appellant,

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS,

Appellee.

————

On Appeal from the Board of Veterans’ Appeals

————

(Argued September 2, 2020

December 17, 2020)

Lily Halpern and Molly Petchenik, law students,

with whom Michael J. Wishnie, all of New Haven,

Connecticut, appeared for the appellant.

Mark D. Vichich, with whom William A. Hudson,

Jr., Acting General Counsel; Mary Ann Flynn, Chief

Counsel; and Megan C. Kral, Deputy Chief Counsel,

all of Washington, D.C., were on the brief for the

appellee.

Before BARTLEY, Chief Judge, and ALLEN and

MEREDITH, Judges.

ALLEN, Judge, filed the opinion of the Court.

MEREDITH, Judge, filed an opinion concurring in

part in the result and dissenting in part.

ALLEN, Judge: In January 1966, a United States

Air Force B-52 bomber carrying four thermonuclear

40a

weapons collided with another aircraft over Spain.

Two of the nuclear weapons the B-52 was carrying

crashed into the ground and exploded near the village

of Palomares. The non-nuclear explosions of these

devices spread radioactive plutonium over the Spanish

countryside. Appellant Victor B. Skaar was one of

approximately 1,400 U.S. servicemembers, most from

the Air Force, who responded to this tragic event and

participated in cleanup activities.

In an April 14, 2017, decision, the Board of Veterans’

Appeals denied Mr. Skaar service connection for

leukopenia, which he claimed was due to exposure to

ionizing radiation during the cleanup activities near

Palomares. In addition to contesting the Board’s

denial of service connection for leukopenia before the

Court, Mr. Skaar contends that the Board erred

because it did not adjudicate what he claims is a

pending appeal of a denied claim for service connection

for skin cancer, also claimed as due to exposure to

ionizing radiation.

Mr. Skaar sought to proceed as a representative of

a class of veterans who had participated in the

Palomares cleanup challenging both the exclusion of

Palomares from the list of “radiation risk activities”

under 38 C.F.R. § 3.309 as well as the accuracy of

radiation dose estimates the Air Force provided in the

context of 38 C.F.R. § 3.311.1 On December 6, 2019,

this Court, sitting en banc, held for the first time in its

history that it may certify classes in the context of an

individual appeal of a Board decision.2 In doing so, as

See Appellant’s Motion for Class Certification or Aggregate

Resolution.

Skaar v. Wilkie (Skaar II), 32 Vet.App. 156, 177-78 (2019) (en

banc order). We had previously held that, in appropriate

circumstances, we would certify classes in the context of

41a

we explain in more detail below, we rejected Mr.

Skaar’s request to proceed as a representative of a

class challenging the exclusion of Palomares as a

“radiation risk activity” under § 3.309.3 However, we

concluded that his appeal could proceed as a class

action with respect to his claim under § 3.311. The

Court defined the class for which Mr. Skaar could

serve as a representative as the following:

All U.S. veterans who were present at the

1966 cleanup of plutonium dust at Palomares,

Spain, and whose application for serviceconnected 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.[4]

Today we address the merits of Mr. Skaar’s appeal

both on the claim for which we granted class certification as well as the issues he presses on an individual

basis. We summarize our holdings here. Beginning

with the class claim concerning radiation dose estimates,

we hold that the Board failed to meet its obligation

under 38 C.F.R. § 3.311(c) to ensure that dose estimates

VA received from the Air Force constitute “sound

scientific evidence.” We will remand this issue to the

Board so it may assess whether the dose estimates

petitions. See Monk v. Wilkie, 30 Vet.App. 167, 174 (2018) (en

banc).

Skaar II, 32 Vet.App. at 173-74.

Id. at 201.

42a

the Air Force has provided are based on such sound

scientific evidence, providing an adequate statement

of reasons or bases for the conclusion it reaches.

The questions before us concerning Mr. Skaar’s

individual claims fall into two categories: (1) The

various arguments appellant advances concerning his

skin cancer claim, and (2) whether VA has unlawfully

failed to include Palomares as a “radiation risk

activity” under 38 C.F.R. § 3.309.5 As to appellant’s

skin cancer arguments, we are unable to reach the

merits of those claims because the Board did not

address them. But though we lack jurisdiction to

address the skin cancer claim on the merits, we do

have jurisdiction to determine whether the Board

erred in failing to address it. We hold that we must

remand the skin cancer claim because VA failed to

provide a Statement of the Case (SOC) in response to

a valid Notice of Disagreement (NOD) appellant filed.

Concerning the radiation risk activity under § 3.309,

we hold that we lack jurisdiction to address the

arguments that remain after the Court’s class

certification decision because appellant did not raise

them before the Agency. And, as we explain, our class

certification decision resolves the appeal on that issue

as to all other matters.

We will proceed as follows. First, we will set out a

basic statement of facts that applies generally to all

the claims and that explains how this matter reached

the Court. We will, however, provide more detailed

facts in the context of our discussion of the specific

As we noted, the en banc Court denied Mr. Skaar’s request to

represent a class with respect to the radiation risk activity issue

under § 3.309. See id. at 173-74. However, as we explain below,

the denial of class certification did not fully resolve this claim on

an individual level.

43a

claims later in our opinion. Second, we will describe

the legal framework for awarding service connection

for conditions claimed to be caused by exposure to

ionizing radiation. Third, we will address the claim

concerning radiation dose estimates under § 3.311 for

which appellant represents a class. And finally, we

will discuss appellant’s two sets of individual claims

concerning skin cancer and the lack of designation of

the Palomares cleanup as a radiation risk activity

under § 3.309.

I. GENERAL BACKGROUND

A. Factual Background

Appellant served in the United States Air Force

from November 1954 to July 1981,6 and he participated in and was present at the Palomares cleanup. In

fact, as explained further below, he was in the “High

26” group of service members who had test results

that, compared to test results of other Palomares

cleanup workers, showed the highest exposure to

radiation, and who were monitored for a period after

the cleanup ended.7 In 1998, he was diagnosed with

leukopenia, a decrease in white blood cell count.8 His

doctor opined that exposure to ionizing radiation

“[h]istorically does appear to be the positive agent”

causing leukopenia, but his doctor concluded that “we

have been unable to prove this.”9 Appellant filed a

claim for service connection for leukopenia in August

1998.10 In February 2000, VA denied his claim because

Record (R.) at 2.

R. at 2124-28.

R. at 2157.

Id.

R. at 2155.

44a

leukopenia is not a radiogenic disease VA recognizes

as resulting from a “radiation-risk activity.”11

In March 2011, appellant requested that VA reopen

his claim.12 The regional office (RO) requested a

radiation exposure opinion from the Air Force.13 In

April 2012, the Air Force estimated that appellant’s

maximum total effective dose 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

those working in occupations typically involving radiation exposure.14 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 [appellant’s]

leukopenia . . . can be attributed to radiation exposure

while in military service.”15 The RO denied appellant’s

claim in June 2012.16 Appellant disagreed with the

RO’s denial and eventually perfected an appeal to the

Board.17

R. at 2098.

R. at 2077.

R. at 1886. We will discuss the procedure for obtaining dose

estimates in more detail below.

R. at 1888-89. A rem (roentgen equivalent man) is a unit of

measurement for radiation. One unit represents “the dosage of an

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 Sept. 9, 2020).

R. at 1877.

R. at 1869.

During this time, appellant raised a skin cancer claim based

on his exposure to ionizing radiation. We will discuss the

45a

In October 2013, a private physician opined that

appellant’s leukopenia “is likely related to exposure to

heavy radioactive material in [1966].”18 In June 2014,

after the Air Force reevaluated its dose estimate methodologies, the Air Force provided VA with appellant’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.19

In a May 2015 decision, the Board found the Air

Force’s revised dose estimates were new and material

evidence warranting the reopening of appellant’s

claim.20 The Board remanded the claim to the RO

because the Air Force’s “revised assessment [was]

significantly higher than the April 2012 assessment,”

and therefore, “another [dose estimate] opinion [was]

warranted.”21 In August 2016, the Director of Compensation Service provided a dose estimate opinion based

on a memorandum from the Deputy Chief Consultant,

Post Deployment Health Services, who had reviewed

the June 2014 Air Force dose estimate,22 and medical

literature about the medical effects of ionizing radiation.23 The director found appellant’s dose estimate

“did not exceed 175.7 rem for the bone surface, 69.3

for the lungs and 8.4 rem for the liver” and that

appellant’s leukopenia was less likely than not related

procedural history of that claim below in our analysis of that

matter.

R. at 39-40.

R. at 1301, 1274-75.

R. at 695-99.

R. at 698.

R. at 132.

R. at 131.

46a

to his radiation exposure.24 The RO again denied

appellant’s claim.25 In September 2016, a private

physician opined that appellant’s leukopenia was “a

result of exposure to ionizing radiation/plutonium.”26

In the April 2017 decision on appeal, the Board

denied appellant’s claim seeking service connection for

leukopenia.27 The Board first noted that leukopenia

was “not listed as a disease specific to radiation-exposed

veterans,” and thus presumptive service connection

under 38 C.F.R. § 3.309 was “not for consideration.”28

In considering the dose estimate evidence under 38

C.F.R. § 3.311, the Board found the May 2012 dose

estimate opinion lacked probative value “as it was

based on an inaccurate dose estimate.”29 But, the

Board found the August 2016 dose estimate “highly

probative” because it “was based on a review of

the entire record,” while appellant’s private medical

opinions were not as probative because “none offered

any rationale for their statements.”30 Recall that

the 2016 dose estimate from the Director of VA’s

Compensation Service was based on the revised 2014

dose estimate from the Air Force. Appellant appealed

the Board’s decision to the Court.

In February 2019, the Court, retaining jurisdiction

over this appeal, remanded the matter to the Board for

the limited purpose of providing a supplemental

Id.

R. at 113-14.

R. at 38.

R. at 2-12.

R. at 5.

R. at 10.

R. at 10-11.

47a

statement of reasons or bases addressing arguments

appellant raised about whether the dose estimates

constituted sound evidence under 38 C.F.R. § 3.311,

but that the Board had failed to address.31 In a March

2019 supplemental statement, the Board found that

“on its face [the June 2014 revised dose estimate the

Air Force provided] is based on sound scientific

evidence” because it “was based on then recently reevaluated internal processes which were initiated to

ensure a comprehensive and consistent approach to

dose estimates,” and because the revised dose estimate

“considered [appellant’s] previously reported intake

values based on the application of contemporary

modes in his bioassay data collected in the 1960’s.”32

With respect to prior inconsistencies in the Air

Force’s dose methodologies, 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.”33

The Board explained it “is bound by regulations of the

Department,” and those regulations “provide specific

instructions for obtaining dose estimates.”34 Thus,

“[w]ithout an independent dose estimate, and without

a rational basis to reject the competent findings of the

Air Force,” the Board found no evidentiary basis on

which to grant service connection. 35 The Board also

Skaar v. Wilkie (Skaar I), 31 Vet.App. 16 (2019).

Appellee’s Response (Resp.) to the Court’s February 1, 2019,

Order at 4 (Mar. 29, 2019).

Id. at 5 (citing Colvin v. Derwinski, 1 Vet.App. 171, 175

(1991)).

Id. at 6.

Id. at 5.

48a

acknowledged that appellant could have submitted his

own independent dose estimate but that he failed to do

so.36

After we received this supplemental statement from

the Board, the Court certified a class with respect to

the dose estimates but found that appellant lacked

standing to pursue various other claims on behalf of

the class, including those he asserted under 38 C.F.R.

§ 3.309. The en banc Court then returned this matter

to a panel to address the merits. After the Court

approved a joint notice plan, we held oral argument.

We now decide both the class matter regarding dose

estimates and the remainder of appellant’s individual

arguments.

B. Legal Landscape for Claimed Exposure to

Ionizing Radiation

Congress recognized that for veterans who were

exposed to radiation during military service, the procedure for establishing direct service connection was

“unduly burdensome because many veterans were having

difficulties supporting their claims for compensation.”37

Thus, for veterans seeking compensation for diseases

related to in-service exposure to radiation, Congress

mandated and VA established special procedures to

follow.38

With these provisions in place, a veteran may establish service connection for certain disabilities claimed

as due to in-service exposure to ionizing radiation in

Id. at 6.

Hilkert v. West, 12 Vet.App. 145, 148 (1991) (en banc) (citing

Wandel v. West, 11 Vet.App. 200 (1998)).

See Veterans’ Dioxin and Radiation Exposure Compensation

Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984).

49a

one of three ways: (1) Via the presumption of service

connection for radiation-exposed veterans under 38

U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(3)(ii); (2) by

meeting certain conditions specified in 38 C.F.R.

§ 3.311(b) for veterans with radiogenic diseases; or

(3) by satisfying the elements of standard, direct

service connection.39 We note that in its decision the

Board addressed a theory of standard, direct service

connection, but appellant did not challenge the Board’s

findings before the Court. Therefore, this theory is not

at issue.40

The first regulatory provision, 38 C.F.R. § 3.309(d),

provides a presumption of service connection for

radiation-exposed veterans with certain listed disabilities. The regulation defines “radiation-exposed veteran”

as one who “participated in a radiation-risk activity”

and lists specific radiation-risk activities.41 For the

purposes of this appeal, we note that the regulation

does not include the Palomares cleanup in the

regulation’s list of radiation risk activities; nor does

the regulation include leukopenia in the regulation’s

list of presumptive disabilities.

Under the second regulation, 38 C.F.R. § 3.311, the

veteran must first establish that he or she suffers from

a radiogenic disease that manifested within a certain

time period.42 Once a claimant has established a

diagnosis of a radiogenic disease within the specified

period and claims that the disease is related to his

See Rucker v. Brown, 10 Vet.App. 67, 71 (1997) (citing

Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)).

See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015)

(en banc).

38 C.F.R. § 3.309(d)(3)(i) (2020).

38 C.F.R. § 3.311(b)(2), (5) (2020).

50a

radiation exposure while in service, VA must obtain a

dose assessment and request exposure data from the

veteran’s service branch.43 For those claims that meet

these threshold requirements, the RO is required to

refer the case to the Under Secretary for Benefits.44 If

a condition is not recognized by regulation as a

“radiogenic disease,” the claim nevertheless must be

referred to the Under Secretary for Benefits when a

claimant “has cited or submitted competent scientific

or medical evidence that the claimed condition is a

radiogenic disease.”45

The Under Secretary for Benefits “shall consider the

claim with reference to the factors specified in paragraph (e) of this section and may request an advisory

opinion from the Under Secretary for Health.”46 These

factors include the probable dose, sensitivity of the

involved tissue, and the time-lapse between exposure

and onset of the disease.47 How VA assesses these

factors – requiring sound medical and scientific evidence – is critical to the matter before the Court, and

we will return to that assessment in a moment. In

making the required determination, the Under Secretary

for Benefits may request an advisory opinion from the

Under Secretary for Health because consideration of

the claim “relies heavily on medical and scientific

findings and analysis.”48 The Court has held that the

Under Secretary for Benefits “is not explicitly required

38 C.F.R. § 3.311(a)(1)-(2); see Hilkert, 12 Vet.App. at 148.

38 C.F.R. § 3.311(b).

38 C.F.R. § 3.311(b)(5); see also Parrish v. Shinseki, 24

Vet.App. 391, 395 (2011).

38 C.F.R. § 3.311(c)(1).

38 C.F.R. § 3.311(e).

Hilkert, 12 Vet.App. at 149; see also 38 C.F.R. § 3.311(c)

51a

to refer to the factors listed in [§] 3.311(e), but should,

rather, consult those factors as a point of reference

when making recommendations to the [RO].”49

The final determination of the Under Secretary

for Benefits is then sent to the agency of original

jurisdiction, which considers the opinion as evidence.50

In Stone, the Court held that although the Under

Secretary for Benefits was not required to explicitly

consider each of the factors in § 3.311(e), “the cursory

explanation provided . . . did not provide adequate

rationale for the conclusion that there was no

reasonable possibility that the veteran’s cancer was

caused by his in-service exposure as required by 38

C.F.R. § 3.311(c)(ii).”51 Thus, the Court held that the

Board erred in relying on that opinion.52

At oral argument, the Secretary’s counsel argued

that in subsections (1) and (2), § 3.311(c) provides the

Under Secretary for Benefits with two choices: The

Under Secretary may find either that there is sound

evidence to support radiation exposure or there is no

reasonable possibility that a veteran’s disease is

related to exposure.53 Though the Secretary’s counsel

initially appeared to suggest that the requirement of

sound scientific and medical evidence applies only to

subsection (1) when the evidence supports granting

Stone v. Gober, 14 Vet.App. 116, 120 (2000) (discussing

Hilkert, 12 Vet.App. at 149-50).

38 C.F.R. § 3.311(f).

Stone, 14 Vet.App. at 120.

Id.

Oral Argument (O.A.) at 46:33-47:47, 47:50-48:14, Skaar v.

Wilkie (Skaar III), U.S. Vet. App. No. 17-2574 (oral argument

held Sept. 2, 2020), https://www.uscourts.cavc.gov/oral_argumen

ts_audio.php.

52a

the claim, but not to subsection (2) when the evidence

supports denying the claim,54 the Secretary later

conceded that the sound-evidence requirement functionally applies to both subsections.55

We agree that the “sound evidence” requirement

applies to both subsections (1) and (2) of § 3.311(c). To

hold otherwise would mean that the standard for

granting a claim based on exposure to ionizing

radiation is different than the standard for denying a

claim in a way that is materially adverse to veterans.

And to hold otherwise would allow VA to deny a

veteran benefits based on science that is not sound but

only grant benefits only when the science is deemed

sound. Such an interpretation would lead to absurd

results, something courts should avoid.56 Furthermore,

it is clear from the Board’s supplemental statement

and the Secretary’s filings throughout this appeal that

both understood that whether the dose estimates were

sound evidence was a key consideration under the

regulation. Our decision will proceed on this interpretation of the regulation. We have no occasion in this

appeal to consider whether, given the regulation’s

express language, the quality of evidence under subsection (1) differs from the quality of the evidence

under subsection (2), and, therefore, we express no

views on that question.

Id.

Id. at 48:14-46.

See, e.g., McNeill v. United States, 563 U.S. 816, 822 (2011);

United States v. Wilson, 503 U.S. 329, 334 (1992); Timex V.I., Inc.

v. United States, 157 F.3d 879, 886 (Fed. Cir. 1998); Atencio v.

O’Rourke, 30 Vet.App. 74, 83 (2018).

53a

II. THE CLASS CLAIM: DOSE ESTIMATES AND

38 C.F.R. § 3.311

A. Additional Factual Background

In our December 2019 order dealing with class

certification, the Court provided a detailed history of

the Palomares incident and radiation exposure, and

we incorporate that history here.57 However, we will

summarize that history as it relates to the matter

before us. Following the accident involving the B-52

bomber and the detonation of the two thermonuclear

bombs near Palomares, Spain, appellant, along with

nearly 1,400 U.S. military personnel, assisted in the

cleanup efforts. To aid the effort to monitor possible

radioactive exposure, many of those who worked in the

cleanup effort gave urine and nasal swab samples. A

group of 26 service members, including appellant,

referred to as the “High 26,”were exposed to the

greatest amount of radiation and were monitored for

18 to 24 months following the cleanup for signs of

radiogenic conditions.58 The Air Force discontinued

these monitoring efforts in December 1967 when it

determined these service members’ “health is in no

jeopardy from retention of radioactive materials as a

result of participation in the [Palomares cleanup]

operation.”59

In evaluating disability claims based on ionizing

radiation exposure, VA turns to the Air Force for

information. In April 2001, a consulting firm, LabatAnderson, evaluated the Air Force’s dose methodology60

Skaar II, 32 Vet.App. at 167-72.

R. at 2124-28.

R. at 2430.

See R. at 2682-2818.

54a

and provided a report to the Air Force that established

preliminary dose estimates for various subcategories

of veterans.61 The Labat-Anderson Report (LA Report

or the Report) stated that the recorded urine dose

intakes for Palomares veterans “seemed unreasonably

high” compared to “environmental measurements”

derived from air samples gathered 15 years after

cleanup and “estimates prepared for other plutonium

exposure cases – persons residing in the Palomares

vicinity and Manhattan Project workers.”62 The LA

Report found that 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.63 After

comparing the “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.”64

The LA Report noted its findings “represent

preliminary estimates that cannot be considered as

definite” and “recommended further study to develop

credible estimates of doses that are compatible with

those calculated from environmental data.”65 Despite

the caveats, the Air Force adopted the Report’s dose

estimate methodology in full.66

R. at 2691.

R. at 2701.

R. at 2691.

R. at 2795.

Id.

R. at 1580-81, 3508-511.

55a

In December 2013, the Air Force concluded that an

evaluation of its radiation dose methodology revealed

“inconsistencies in dose assignment over the past 12

years” since the LA Report.67 The Air Force found its

methodology, which was based on the Report,

“appeared to underestimate doses for 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.68 The Air Force further stated it would

reevaluate individual dose estimates it had already

provided Palomares veterans.69

In the course of this appeal, further information

related to the dose estimates the Air Force provides

VA has become available. In February 2019, this Court

issued a limited remand for the Board to provide a

supplemental statement of reasons or bases addressing the dose estimates VA relies on for Palomares

veterans.70 Appellant had the opportunity to submit

more information about the dose estimates to VA,

which he did. Included in that information was a

December 2017 report from Dr. Frank von Hippel that

called into question the Air Force’s reliance on the

LA Report.71 Dr. von Hippel concluded that “the Air

Force’s dose estimates have huge uncertainties and

the maximum doses incurred by those not in the

‘High 26,’ could be hundreds of times higher than those

R. at 1580.

Id.

R. at 1581.

Skaar I, 31 Vet.App. at 18-20.

R. at 2635-50.

56a

that the Air Force has recommended to the VA for

determination of benefits.”72

Additionally, in August 2020, the Secretary

provided the Court with a recent report from the Air

Force that, in part, responds to Dr. von Hippel’s

paper.73 In the report, the Air Force defends its use of

dose estimate methodologies and notes that it

“provides significant benefit of doubt in favor of

veterans.”74 Both the Secretary and appellant note

that this recent report was not before the Board and

that the Court lacks jurisdiction to evaluate it in the

first instance.75 We refer to this submission merely to

acknowledge its existence. In no way do we base our

decision on this recent report.

B. Parties’ Arguments

On behalf of the class the Court certified, appellant

challenges the Air Force dose estimates based on the

LA Report that VA relies on for Palomares veterans.

He argues that pursuant to 38 C.F.R. § 3.311(c)(2)(ii),

VA is required to rely on sound scientific and medical

evidence and that the Air Force dose estimates do not

meet that standard. Thus, he asserts that VA’s

reliance on those estimates is arbitrary, capricious, an

abuse of discretion or not otherwise in accordance with

law, or, in the alternative, that VA’s reliance on the

estimates violates the Due Process Clause of the Fifth

Amendment. The Secretary counters that in relying on

the Air Force’s dose estimates the Board made no clear

errors of fact. He urges that we affirm the decision on

R. at 2650.

See Secretary’s Notice of Case Development (Aug. 25, 2020).

Id. Exhibit at 61.

See id. at 2; O.A. at 4:55-5:15.

57a

appeal. Because the Board failed to explain whether

the dose estimates constituted sound evidence, we will

set aside the Board’s decision and remand the matter

for the Board to consider this issue and explain the

bases for its determinations.

C. Legal Background

As we noted, a veteran may seek service connection

for a disability caused by exposure to ionizing

radiation by establishing the standard elements of

direct

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