Earlier this month, the Federal Circuit issued its opinion in Skarr v. McDonough, a case we have been following because it attracted two amicus briefs. In this case, after being diagnosed with leukopenia Skarr filed a claim with the Department of Veterans Affairs for service-connected benefits. The Board of Veterans’ Appeals denied Skarr’s claim, and Skarr appealed to the Court of Appeals for Veterans Claims. That court certified a class including Skarr and similarly situated veterans. The Secretary of Veterans Affairs appealed the class certification to the Federal Circuit, asserting the Veterans Court lacked authority to certify the class. Skarr cross-appealed the Veterans Court’s definition of the class. In an opinion authored by Judge Hughes and joined by Judge Newman and Chief Judge Moore, this month the Federal Circuit vacated the Veterans Court’s class certification and denied Skarr’s cross-appeal. This is our opinion summary.
Judge Hughes presented the facts of the case:
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.
Three decades later, in 1998, Mr. Skaar was diagnosed with leukopenia, a blood disorder characterized by a decrease in white blood cell count. . . .
Mr. Skaar subsequently filed a claim for service-connected benefits, which the agency denied in February 2000.
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 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. Id. at 201.
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. . . .
A year after certifying the class, the Veterans Court issued a decision on the merits of Mr. Skaar’s § 3.311 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.
The Secretary appeals and Mr. Skaar cross-appeals, both challenging the Veterans Court’s class definition.
In the Federal Circuit’s opinion, Judge Hughes first addressed the class certification by the Board of Veterans Affairs. He concluded that “[t]he 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.” Moreover, he explained, “[t]he 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.” And “[w]hile district courts may exercise supplemental jurisdiction over future claimants by virtue of their explicit statutory authority, the Veterans Court lacks such jurisdictional authority.”
Next, Judge Hughes addressed Skaar’s contention in his cross-appeal to “the Veterans Court’s decision declining to equitably toll the statutory period to appeal” for claimants who did not join the present class action. The court pointed out how the Veterans Court “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-by-case analysis and not a categorical determination.’” Judge Hughes ultimately concluded that “the Veterans Court’s analysis does not evince any legal error or misinterpretation of the law surrounding equitable tolling.”
In short, in this case the Federal Circuit held that, because the Veterans Court certified a class that included veterans who had not received a Board decision and veterans who had not filed a claim, the Veterans Court exceeded its jurisdiction. As a result of its analysis, the Federal Circuit vacated the Veteran Court’s class certification and also limited the application of the merits decision to Skarr’s claim.