Argument Preview

This week we are previewing oral arguments scheduled for next week at the Federal Circuit in three cases that attracted amicus briefs. Today we highlight Skaar v. McDonough, in which McDonough, the Director of Veterans Affairs, appeals a decision by the Court of Veterans Appeals certifying a class action of veterans. Skaar cross-appeals to argue the Court of Veterans Appeals misinterpreted equitable tolling and waiver standards to exclude from the certified class veterans who had not timely appealed past agency decisions. Amicus briefs in support of Skaar were filed by the National Veterans Legal Services Program and 15 Administrative Law, Civil Procedure, and Federal Courts Professors. This is our argument preview.

In its opening brief, McDonough argues that the Court of Veterans Appeals “explicitly requires a ‘decision of the [b]oard’ as a prerequisite for Veterans Court jurisdiction,” but “the Veterans Court in this case certified a class that includes categories of veterans over whom it does not possess jurisdiction: present-future claimants, who have not yet received the statutorily mandated board decision, and future-future claimants, who have not even filed claims with VA.” According to McDonough, this is “clear legal error.”

In his principal and response brief, Skaar argues “[t]he Veterans Court did not err in certifying an injunctive class that includes veterans who have been or will be denied benefits.” Skaar notes that “courts regularly certify future-oriented injunctive class actions under analogous statutes—most notably pursuant to the Administrative Procedure Act (APA), on which Congress most closely modeled the [Veterans’ Judicial Review Act].” Further, Skaar contends, the “All Writs Act, which allows the Veterans Court to enter orders in aid of its prospective jurisdiction over the claims of Palomares veterans not yet before it, and the Veterans Court’s inherent powers to set its own rules of practice and procedure, each independently also provide the authority to certify class actions including claims that have been or will be denied.” With respect to its cross appeal, moreover, Skaar argues the “the Veterans Court misinterpreted the standard for equitable tolling and waiver of exhaustion when it excluded from the class veterans who had not timely appealed claims denied by the VA.”

In his response and reply brief, McDonough argues again that the Veterans Court exceeded its jurisdiction by certifying a class of veterans who have not received board decisions or filed VA benefits claims. With respect to the cross-appeal, McDonough maintains that neither of Skaar’s arguments to include past or expired claimants “has merit.”

In his reply brief, Skaar argues that, “[i]nstead of conducting a flexible, case-specific analysis, the Veterans Court imposed a categorical rule that class-wide tolling is available only when the defendant has engaged in ‘secretive conduct.’” Also, Skaar contends, “Congress’ intent to create a uniquely pro-claimant veterans benefits system confirms that a generous and flexible equitable tolling standard is appropriate.” Further, Skaar notes that the “Veterans Court also erred by failing to conduct an exhaustion analysis for past or expired claimants.” As a result, Skaar argues, the Veterans Court “erred in excluding past and expired claimants from the certified class because it misinterpreted the standards for equitable tolling and waiver of exhaustion.”

As mentioned, two amicus briefs in support of Skaar were filed by the National Veterans Legal Services Program and 15 Administrative Law, Civil Procedure, and Federal Courts Professors.

The National Veterans Legal Services Program argues that the pre-VJRA rules allowed for class members to include those with pending claims at the board and claims not yet filed. Further, the group argues, the VJRA was enacted to expand Veterans coverage. Lastly, the group contends the power to certify this class is granted to the Veterans Court by the All-Writs Act.

The 15 law professors argue in their amicus brief that “class actions against governmental agencies are well-established and common” in these situations. They contend, moreover, that “[a] categorical approach that forced parties to serially exhaust administrative remedies to participate in a class action—especially one challenging the same governmental policy—would needlessly undermine the fundamental benefits of a class litigation.” Finally, they argue that “class actions challenging agency policies are consistent with basic administrative law principles that dictate how courts review government conduct.”

This case will be argued on Thursday, April 7. We will report on developments.