Victor B. Skaar v. Denis R. McDonough, Secretary of Veterans Affairs

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)