Skaar v. McDonoughSkaar v. McDonough
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.
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.
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 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
On cross-appеal, 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 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.
I
A
In January 1966, a United States Air Force B-52 bomber carrying four thermonuclear weapons collided mid-air 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 “detеrmined 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 blood cell count. His doctor opined that exposure to ionizing radiation “appear[s] to be the positive agent” that historically causes leukоpenia, 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 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 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 а 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.
B
Before the Veterans Court, Mr. Skaar challenged the agency‘s “omission of the Palomares cleanup from the . . . radiation-risk activities” listed in
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. Aрp. 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:
(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 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); or
(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
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
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 cеrtify 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 present-future 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 future-future clаimants, along with present claimants, in the class. Id. at 186.
The Veterans Court then invoked
[a]ll U.S. veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain, and whose application for service-connected disability compensation based on exposure to ionizing radiation [the 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 beеn 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 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 mеrits 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.
II
A
Our jurisdiction to review decisions of the Veterans Court is governed by
(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 rеsolution 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 jurisdictiоnal statute that is separate from the remand proceeding involving
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 statutorily-permitted reach, i.e., veterans who havе not filed claims for benefits.2
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
B
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.”
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 Secrеtary 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, present-future, or future-future claimants, and because the expired claimants cannot benefit from equitable tolling to revive claims that they could have timely appealed following the Board‘s denial.
A
The Veterans Court exceeded its jurisdiction when it certified a class to
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 jurisdiction“); 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 authоrity 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-by-case 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:
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
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
We accordingly vacate the Veterans Court‘s class certification. Should the court choose to reconsider on remand whether class certification is appropriate, the court shall exclude past, present-future, and future-future claimants, since no such claimants have received a Board decision.
B
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 claimant-friendly [Veterans’ Judicial Review Act].” Cross-Appellant‘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 (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
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 еxpired 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-by-case 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 reason other than [thе 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 thе 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.
IV
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 vacаte the class certification, we also limit the application of the merits decision to Mr. Skaar‘s claim.
VACATED AND REMANDED
COSTS
No costs.