Supreme Court of the United States · Official docket →
Victor B. Skaar v. Denis R. McDonough, Secretary of Veterans Affairs
Paid petition · United States Court of Appeals for the Federal Circuit, No. 2021-1757, 2021-1812 · judgment September 8, 2022
Before the decision, about 1.8× the 4.1% base rate. The model weighted this up for a petition citing more than ten dissents, a dissent in the court below, and a Federal Circuit decision below.
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)
Counsel of record
For petitioner
Michael J. Wishnie
Jerome N. Frank Legal Services Organization
For respondent
Elizabeth B. Prelogar
Solicitor General
Case
Subject area
Judicial Power (estimated from the questions presented, in the Supreme Court Database’s categories)
Conference history
Distributed for 1 conference
Amicus briefs
4 cert-stage
Order
Order list, June 20, 2023 · Certiorari denied
Proceedings
- Jun 20 2023Petition DENIED.
- May 30 2023DISTRIBUTED for Conference of 6/15/2023.
- May 30 2023Reply of petitioner Victor B. Skaar filed. (Distributed)
- May 15 2023Brief of respondent Denis McDonough, Secretary of Veterans Affairs in opposition filed.
- Apr 18 2023Motion to extend the time to file a response is granted and the time is further extended to and including May 15, 2023.
- Apr 17 2023Motion to extend the time to file a response from May 1, 2023 to May 15, 2023, submitted to The Clerk.
- Mar 30 2023Brief amici curiae of National Organization of Veterans' Advocates, Inc., et al. filed.
- Mar 30 2023Brief amici curiae of Civil Procedure and Administrative Law Scholars filed.
- Mar 30 2023Brief amici curiae of National Veterans Legal Services Program, et al. filed.
- Mar 29 2023Amicus brief of National Law School Veterans Clinic Consortium not accepted for filing. (April 03, 2023) (duplicate efiling)
- Mar 29 2023Brief amicus curiae of National Law School Veterans Clinic Consortium filed.
- Mar 03 2023Motion to extend the time to file a response is granted and the time is extended to and including May 1, 2023.
- Mar 02 2023Motion to extend the time to file a response from March 30, 2023 to May 1, 2023, submitted to The Clerk.
- Feb 24 2023Petition for a writ of certiorari filed. (Response due March 30, 2023)