Case: 21-1757 Document: 105 Page: 1 Filed: 01/17/2023
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR B. SKAAR,
Claimant-Cross-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant
______________________
2021-1757, 2021-1812
______________________
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-cross-appellant.
Also represented by MEGHAN BROOKS, NATHAN
HERNANDEZ, CAROLINE MARKOWITZ, CAMILLA REEDGUEVARA. 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,
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2 SKAAR v. MCDONOUGH
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.
FOR THE COURT
January 17, 2023 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
Case: 21-1757 Document: 105 Page: 3 Filed: 01/17/2023
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR B. SKAAR,
Claimant-Cross-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant
______________________
2021-1757, 2021-1812
______________________
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.
I
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
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2 SKAAR v. MCDONOUGH
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-waittimes.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
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SKAAR v. MCDONOUGH 3
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 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.
II
Review is particularly important since there are substantial flaws in the panel’s analysis, which is at odds with
Supreme Court decisions.
1 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.
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4 SKAAR v. MCDONOUGH
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
2 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.
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SKAAR v. MCDONOUGH 5
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 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
3 Section 405(g) has been amended to replace the
Secretary with the Commissioner of Social Security. See
42 U.S.C. § 405(g) (2020).
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6 SKAAR v. MCDONOUGH
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 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 requests
for reconsideration or waiver in the past and would not do
so in the future” because “[a]s to them, no ‘final decision’
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SKAAR v. MCDONOUGH 7
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 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
4 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)).
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8 SKAAR v. MCDONOUGH
§ 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, 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
5 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 clean-up. The class action will not determine the individual benefit claims—only the common
claim regarding the dose estimate methodology for Palomares veterans.
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SKAAR v. MCDONOUGH 9
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 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
6 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 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.
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10 SKAAR v. MCDONOUGH
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 non-nuclear 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 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
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SKAAR v. MCDONOUGH 11
“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 the VA, and
cited this class action as an example. H.R. Rep. No. 117-
249, 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.
