Veteranclaims’s Blog

September 9, 2022

Skaar v. McDonough, No. 2021-1757, 2021-1812 (Decided: September 8, 2022); ionizing radiation in Palomares, Spain; authority to certify a class that includes veterans who had not received a Board decision; 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;

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.

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



Decided: September 8, 2022


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
Case: 21-1757 Document: 84 Page: 1 Filed: 09/08/2022
2 SKAAR v. MCDONOUGH
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.
HUGHES, Circuit Judge.
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
Case: 21-1757 Document: 84 Page: 2 Filed: 09/08/2022
SKAAR v. MCDONOUGH 3
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 pursuant to
38 U.S.C. § 7252(a)—because jurisdiction over Mr. Skaar’s
individual claim did not create further jurisdiction over a
class of similarly situated veterans whose individual
claims were beyond the court’s jurisdiction. We agree. By
certifying a class that includes veterans who had not received
a Board decision, the Veterans Court exceeded its
jurisdiction. We accordingly vacate the court’s class certification
and remand for further proceedings.
On cross-appeal, 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
.
Case: 21-1757 Document: 84 Page: 3 Filed: 09/08/2022
4 SKAAR v. MCDONOUGH
I
A
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. They also provided urine and nasal swab samples
while on site “to assess possible radioactive exposure.”
Id. A group of service members “determined 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 leukopenia, 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
Case: 21-1757 Document: 84 Page: 4 Filed: 09/08/2022
SKAAR v. MCDONOUGH 5
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
May 2012. Shortly thereafter, the regional office denied
Mr. Skaar’s claim, and he appealed the denial to the Board.
“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 a 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.
Case: 21-1757 Document: 84 Page: 5 Filed: 09/08/2022
6 SKAAR v. MCDONOUGH
“[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 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.
1 Id. at 201.
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. App. at 178. The court further acknowledged
that class composition depends on whether it has
1 The Veterans Court held that Mr. Skaar lacks
standing to bring the § 3.309 challenge but has standing to
pursue the § 3.311 challenge. Class Certification,
32 Vet. App. at 172. He has not appealed this holding.
Case: 21-1757 Document: 84 Page: 6 Filed: 09/08/2022
SKAAR v. MCDONOUGH 7
jurisdiction over each class member, that the court has
“only one source of jurisdiction: 38 U.S.C. § 7252,” and that
“a final Board decision operates as the jurisdictional ‘trigger’
that gives [the Veterans Court] the authority to hear a
particular appeal.” Id. at 180. Breaking down the proposed
class into five subgroups, the court then considered
whether it has jurisdiction over the putative class comprising
all veterans who were present at the 1966 Palomares
cleanup that
(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 38 U.S.C.
§§ 7252(a), 7266(a)).
As for present-future and future-future claimants, the
Veterans Court recognized that these claimants “pose a
Case: 21-1757 Document: 84 Page: 7 Filed: 09/08/2022
8 SKAAR v. MCDONOUGH
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 38 U.S.C. §§ 7252 and 7261,” it has “the authority
to certify class actions that include veterans who
have not yet received a final Board decision and those who
have not yet filed a claim.” Id. (citing Monk, 855 F.3d at
1318). In the court’s view, “Mr. Skaar, as class representative,
ha[d] obtained a final Board decision pursuant to
[§] 7252,” and his “satisfaction of [this] jurisdictional requirement”
vested the court with jurisdiction over other
class members, “much in the same way a named plaintiff’s
consent to proceed before a magistrate is sufficient to grant
the magistrate jurisdiction to enter final judgment as to all
class members.” Id. at 181–82. Moreover, the court explained,
Mr. Skaar’s Board decision had opened a “jurisdictional
door” that allowed the Veterans Court to “use [its]
other authorities, as explained in Monk [], to aggregate
Mr. Skaar’s claims with those of the remaining class members.”
Id. at 181.
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 certify 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
Case: 21-1757 Document: 84 Page: 8 Filed: 09/08/2022
SKAAR v. MCDONOUGH 9
present-future and future-future claimants, along with
present claimants, in the class. Id. at 186.
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. These claimants, the court observed, “could
have challenged [the agency’s] treatment of Palomares veterans
just like Mr. Skaar, yet each chose not to.” Id. at 187.
And, the court noted, Mr. Skaar did not present any reason
“to depart from Bove’s principle that the 120-day Notice of
Appeal window to [the Veterans Court] will only be waived
‘when circumstances precluded a timely filing despite the
exercise of due diligence.’” Id. (quoting Bove v. Shinseki,
25 Vet. App. 136, 140 (2011) (per curiam), overruled on
other grounds by Dixon v. McDonald, 815 F.3d 799
(Fed. Cir. 2016)). Thus, the court confined the class to present,
present-future, and future-future claimants.
The Veterans Court then invoked Federal Rule of Civil
Procedure 23 “as a guide for class certification in the appeal
context,” and considered whether the class met the
requisites for class certification pursuant to Rule 23. Id. at

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.


Decided: September 8, 2022


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
Case: 21-1757 Document: 84 Page: 1 Filed: 09/08/2022
2 SKAAR v. MCDONOUGH
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.
HUGHES, Circuit Judge.
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
Case: 21-1757 Document: 84 Page: 2 Filed: 09/08/2022
SKAAR v. MCDONOUGH 3
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 pursuant to
38 U.S.C. § 7252(a)—because jurisdiction over Mr. Skaar’s
individual claim did not create further jurisdiction over a
class of similarly situated veterans whose individual
claims were beyond the court’s jurisdiction. We agree. By
certifying a class that includes veterans who had not received
a Board decision, the Veterans Court exceeded its
jurisdiction. We accordingly vacate the court’s class certification
and remand for further proceedings.
On cross-appeal, 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.
Case: 21-1757 Document: 84 Page: 3 Filed: 09/08/2022
4 SKAAR v. MCDONOUGH
I
A
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. They also provided urine and nasal swab samples
while on site “to assess possible radioactive exposure.”
Id. A group of service members “determined 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 leukopenia, 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
Case: 21-1757 Document: 84 Page: 4 Filed: 09/08/2022
SKAAR v. MCDONOUGH 5
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
May 2012. Shortly thereafter, the regional office denied
Mr. Skaar’s claim, and he appealed the denial to the Board.
“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 a 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.
Case: 21-1757 Document: 84 Page: 5 Filed: 09/08/2022
6 SKAAR v. MCDONOUGH
“[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 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.
1 Id. at 201.
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. App. at 178. The court further acknowledged
that class composition depends on whether it has
1 The Veterans Court held that Mr. Skaar lacks
standing to bring the § 3.309 challenge but has standing to
pursue the § 3.311 challenge. Class Certification,
32 Vet. App. at 172. He has not appealed this holding.
Case: 21-1757 Document: 84 Page: 6 Filed: 09/08/2022
SKAAR v. MCDONOUGH 7
jurisdiction over each class member, that the court has
“only one source of jurisdiction: 38 U.S.C. § 7252,” and that
“a final Board decision operates as the jurisdictional ‘trigger’
that gives [the Veterans Court] the authority to hear a
particular appeal.” Id. at 180. Breaking down the proposed
class into five subgroups, the court then considered
whether it has jurisdiction over the putative class comprising
all veterans who were present at the 1966 Palomares
cleanup that
(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 38 U.S.C.
§§ 7252(a), 7266(a)).
As for present-future and future-future claimants, the
Veterans Court recognized that these claimants “pose a
Case: 21-1757 Document: 84 Page: 7 Filed: 09/08/2022
8 SKAAR v. MCDONOUGH
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 38 U.S.C. §§ 7252 and 7261,” it has “the authority
to certify class actions that include veterans who
have not yet received a final Board decision and those who
have not yet filed a claim.” Id. (citing Monk, 855 F.3d at
1318). In the court’s view, “Mr. Skaar, as class representative,
ha[d] obtained a final Board decision pursuant to
[§] 7252,” and his “satisfaction of [this] jurisdictional requirement”
vested the court with jurisdiction over other
class members, “much in the same way a named plaintiff’s
consent to proceed before a magistrate is sufficient to grant
the magistrate jurisdiction to enter final judgment as to all
class members.” Id. at 181–82. Moreover, the court explained,
Mr. Skaar’s Board decision had opened a “jurisdictional
door” that allowed the Veterans Court to “use [its]
other authorities, as explained in Monk [], to aggregate
Mr. Skaar’s claims with those of the remaining class members.”
Id. at 181.
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 certify 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
Case: 21-1757 Document: 84 Page: 8 Filed: 09/08/2022
SKAAR v. MCDONOUGH 9
present-future and future-future claimants, along with
present claimants, in the class. Id. at 186.
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. These claimants, the court observed, “could
have challenged [the agency’s] treatment of Palomares veterans
just like Mr. Skaar, yet each chose not to.” Id. at 187.
And, the court noted, Mr. Skaar did not present any reason
“to depart from Bove’s principle that the 120-day Notice of
Appeal window to [the Veterans Court] will only be waived
‘when circumstances precluded a timely filing despite the
exercise of due diligence.’” Id. (quoting Bove v. Shinseki,
25 Vet. App. 136, 140 (2011) (per curiam), overruled on
other grounds by Dixon v. McDonald, 815 F.3d 799
(Fed. Cir. 2016)). Thus, the court confined the class to present,
present-future, and future-future claimants.
The Veterans Court then invoked Federal Rule of Civil
Procedure 23 “as a guide for class certification in the appeal
context,” and considered whether the class met the
requisites for class certification pursuant to Rule 23. Id. at 189. Finding that it did, the court certified the class, excluding
past and expired claimants. Id. at 201. It defined
the class as follows:
[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 been denied and relevant
appeal windows of those denials have
expired . . . .
Id. at 189.
Case: 21-1757 Document: 84 Page: 9 Filed: 09/08/2022
10 SKAAR v. MCDONOUGH
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. 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 38 U.S.C. § 7292. Unlike other statutory
provisions that govern our jurisdiction, § 7292 does not
expressly premise appellate review on the finality of the
Veterans Court’s decision. Compare 28 U.S.C. § 1295(a)(1)
(conferring jurisdiction over “an appeal from a final decision
of a district court”), with 38 U.S.C. § 7292(a) (“After a
decision of the [Veterans Court] is entered in a case, any
party to the case may obtain a review of the decision . . . .”).
Nevertheless, we have “generally declined to review nonfinal
orders of the Veterans Court.” Williams v. Principi,
275 F.3d 1361, 1363 (Fed. Cir. 2002) (citation omitted). So
Case: 21-1757 Document: 84 Page: 10 Filed: 09/08/2022
SKAAR v. MCDONOUGH 11
“remand orders from the Veterans Court ordinarily are not
appealable because they are not final.” Adams v. Principi,
256 F.3d 1318, 1320 (Fed. Cir. 2001). We will, however, depart
from this strict rule of finality when the Veterans
Court remands a matter for further proceedings if the following
conditions are satisfied:
(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 resolution 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 jurisdictional statute that is separate from the remand
proceeding involving 38 C.F.R. § 3.311(c) and dose
estimates. Compare Class Certification, 32 Vet. App. at
166 (“We do not today address the merits of Mr. Skaar’s
claim.”), with Merits Decision, 33 Vet. App. at 132 (“Today
we address the merits of Mr. Skaar’s appeal . . . . Beginning
with the class claim concerning radiation dose estimates,
we hold that the Board failed to meet its obligation
Case: 21-1757 Document: 84 Page: 11 Filed: 09/08/2022
12 SKAAR v. MCDONOUGH
under 38 C.F.R. § 3.311(c) to ensure that dose estimates
[the agency] received from the Air Force constitute ‘sound
scientific evidence.’ We will remand this issue to the
Board . . . .”).
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 have not filed claims for benefits.2
2 The Veterans Court’s resolution of the jurisdictional
issue not only affects the Secretary but also affects
Mr. Skaar and similarly situated Palomares veterans who
might benefit from a precedential opinion regarding the
§ 3.311 challenge. See Merits Decision, 33 Vet. App. at 151
(Meredith, J., concurring in part and dissenting in part) (“I
am compelled to comment that the result here demonstrates
that the en banc Court’s resurrection of the limited
remand mechanism, for the purpose of deciding
[Mr. Skaar’s] motion for class certification, turned out not
to be an effective tool. More than 3 years after [Mr. Skaar]
appealed the April 2017 Board decision, the panel is left
with no choice but to conclude that the Board provided an
inadequate statement of reasons or bases for its decision
and to remand the matter for readjudication—the same relief
that the en banc Court could have, and in my view,
should have initially provided. Instead, the parties and the
en banc Court expended considerable time and resources
debating the efficacy of conducting class actions in the appellate
context and the bounds of the Court’s jurisdiction,
without bringing [Mr. Skaar] any closer to receiving a decision
that adequately addresses the merits of whether the
dose estimates relied on by [the agency] are based on a
methodology that complies with 38 C.F.R. § 3.311(c).” (citations
omitted)); see also Class Certification, 32 Vet. App.
Case: 21-1757 Document: 84 Page: 12 Filed: 09/08/2022
SKAAR v. MCDONOUGH 13
See 38 U.S.C. § 5101(a)(1)(A); Travelstead, 978 F.2d at
1248.
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 claim. See 38 U.S.C. § 7252(a);
see also Merits Decision, 33 Vet. App. at 154 (Meredith, J.,
concurring in part and dissenting in part) (“[T]he Board’s
inadequate statement of reasons or bases frustrates judicial
review, precluding [the Veterans Court’s] ability to provide
the requested class-wide relief and compelling [the
court] to remand the matter for full readjudication without
retaining jurisdiction. And, [the court] ha[s] no reason to
assume that further adjudication of the [veteran’s] claim
will lead to a final Board decision adverse to the [veteran]
or subsequent appellate review of the class issue for which
he is the representative.”). Thus, we may exercise jurisdiction
over the court’s class certification decision. See Dambach
v. Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000) (“We do
have jurisdiction . . . when there is a statutory
at 209 (Falvey, J., dissenting) (“We believe that the majority
has created a class that exceeds our jurisdiction and offers
a comparable outcome to members of that class that a
precedential decision could provide without the manageability
and preclusion problems inherent in class litigation.”);
id. at 221 (“If we had an adequate record, a panel
might have, months ago, found that the dose methodology
[the agency] used in Mr. Skaar’s case was flawed and counter
to 38 C.F.R. § 3.311. Its decision, a nationwide precedent,
would have fixed any such systemic dose estimate
problem and [the agency] would have been required to apply
the Court’s holding consistently to all veterans’ cases.”).
Case: 21-1757 Document: 84 Page: 13 Filed: 09/08/2022
14 SKAAR v. MCDONOUGH
interpretation that will affect the remand proceeding and
that legal issue might evade our future review.”).
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.” 38 U.S.C. § 7292(c). But our jurisdiction does not
extend to challenges either to factual determinations or to
the application of the law to the facts of a particular case,
absent a constitutional issue. Id. § 7292(d)(2). Whether the
Veterans Court had jurisdiction is a matter of statutory interpretation,
see id. § 7252(a) (defining the Veterans
Court’s jurisdiction), which we review de novo, In re Wick,
40 F.3d 367, 370 (Fed. Cir. 1994). Likewise, whether the
Veterans Court applied the correct legal standard for equitable
tolling is a question of law we review de novo. James
v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir. 2019).
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 Secretary 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.
Case: 21-1757 Document: 84 Page: 14 Filed: 09/08/2022
SKAAR v. MCDONOUGH 15
A
The 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.
While the Veterans Court correctly acknowledged that “a
final Board decision operates as the jurisdictional ‘trigger’
that gives [it] the authority to hear a particular appeal,”
the court held “that because Mr. Skaar, as class representative,
ha[d] obtained a final Board decision pursuant
to [§] 7252, the jurisdictional door ha[d] been opened, and
[the Veterans Court] may use [its] other authorities, as explained
in Monk [], to aggregate Mr. Skaar’s claims with
those of the remaining class members.” Class Certification,
32 Vet. App. at 181. This was error. See Weinberger v. Salfi,
422 U.S. 749, 753 (1975) (“[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.”).
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
Case: 21-1757 Document: 84 Page: 15 Filed: 09/08/2022
16 SKAAR v. MCDONOUGH
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 authority 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:
38 U.S.C. § 7252(a).” Class Certification,
32 Vet. App. at 180 (citing Henderson v. Shinseki, 562 U.S.
428, 434 (2011)); see Burris, 888 F.3d at 1357 (“The Veterans
Court, as an Article I tribunal, is a creature of statute
by definition. As such, the court can only act through an
express grant of authority from Congress.” (citations omitted)).
This jurisdictional statute empowers the Veterans
Court to review decisions of the Board and confers upon the
court “the power to affirm, modify, or reverse a decision of
the Board or to remand the matter, as appropriate.”
38 U.S.C. § 7252(a) (emphasis added). Thus, the Veterans
Court’s jurisdiction is “premised on and defined by the
Case: 21-1757 Document: 84 Page: 16 Filed: 09/08/2022
SKAAR v. MCDONOUGH 17
Board’s decision concerning the matter being appealed,”
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998), where
“‘decision’ of the Board, for purposes of the Veterans
Court’s jurisdiction under [§] 7252, is the decision with respect
to the benefit sought by the veteran,” Maggitt v. West,
202 F.3d 1370, 1376 (Fed. Cir. 2000) (emphasis added).
This means that “a veteran must first present a request for
a benefit to the Board, then receive a decision on that request,
in order to vest jurisdiction in the Veterans Court to
consider the veteran’s request and arguments in support
thereof.” Id. By definition, therefore, a class must be limited
to veterans who satisfy the jurisdictional requirements
of having requested a benefit and of having received a
Board decision on that request.3 See, e.g., Matthews v. Eldridge,
424 U.S. 319, 328 (1976) (“The nonwaivable element
is the requirement that a claim for benefits shall have
been presented to the Secretary. Absent such a claim there
can be no ‘decision’ of any type. And some decision by the
Secretary is clearly required by the statute.”); Salfi,
422 U.S. at 750, 764 (“The [d]istrict [c]ourt had no
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.’” Matthews v. Eldridge, 424 U.S.
319, 328 (1976). Both the statutory language and the provision’s
“placement within the [Veterans’ Judicial Review
Act]” make clear “that Congress wanted that provision to
be treated as having jurisdictional attributes,” since § 7252
“governs [the Veterans Court’s] adjudicatory capacity.”
Henderson, 562 U.S. at 434–35, 439–40 (comparing § 7252
with § 7266 and holding that § 7266 is not jurisdictional).
Thus, in relying on Bowen as a basis for jurisdiction over
present-future and future-future claimants, see Class Certification,
32 Vet. App. at 184, the Veterans Court erroneously
conflated jurisdiction and exhaustion, see Matthews,
424 U.S. at 328.
Case: 21-1757 Document: 84 Page: 17 Filed: 09/08/2022
18 SKAAR v. MCDONOUGH
jurisdiction over the unnamed members of the class under
42 U.S.C. [§] 405(g), . . . since the complaint as to such class
members is deficient in that it contains no allegations that
they have even filed an application for benefits with the
Secretary, much less that he has rendered any decision, final
or otherwise, review of which is sought.”).
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 38 U.S.C. §§ 7104(a) (jurisdiction
of the Board to review the Secretary’s final decisions),
511 (decisions of the Secretary)—and veterans who
have not received a Board decision, see id. § 7252(a). That
is, the Veterans Court lacked jurisdiction over past, present-
future, and future-future claimants, since none of
these claimants had received a Board decision. Cf. Wick,
40 F.3d at 370 (“Since it is clear that the action of the Secretary
in denying payment to Wick was not a decision of
the Board, it would seem equally clear that the court lacks
jurisdiction over Wick’s petition from that denial.”).
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 jurisdiction encompassing such claims. See
28 U.S.C. § 1367(a) (“[I]n any civil action of which the district
courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy . . . . Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional
parties.”); Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 560 (2005) (explaining that Ҥ 1367
Case: 21-1757 Document: 84 Page: 18 Filed: 09/08/2022
SKAAR v. MCDONOUGH 19
confers supplemental jurisdiction over claims by . . . Rule
23 plaintiffs,” i.e., members of a class action, over which it
may lack original jurisdiction as long as it has original jurisdiction
over at least one class member’s claim). Critically,
Congress has not enacted any comparable
jurisdictional statute for the Veterans Court. While district
courts may exercise supplemental jurisdiction over future
claimants by virtue of their explicit statutory authority, the
Veterans Court lacks such jurisdictional authority. Each
court is limited to the jurisdiction bestowed upon it by Congress.
Thus, the cases Mr. Skaar cites about the scope of
district court jurisdiction are inapplicable where, as here,
the Veterans Court has its own jurisdictional statute.
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
4 Although we vacate the class certification for lack
of jurisdiction, our decision does not bar the Veterans Court
Case: 21-1757 Document: 84 Page: 19 Filed: 09/08/2022
20 SKAAR v. MCDONOUGH
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 “proceed[
ing] on a ‘case-by-case basis.’” Id. at 1239; Cross-
Appellant’s Br. 49.
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
from considering again on remand whether class certification
is appropriate, provided that the court has jurisdiction
over each individual member of the proposed class. The
court could, for example, consider whether certifying a
class of present claimants is proper. It follows then that our
decision to vacate the class certification does not moot
Mr. Skaar’s cross-appeal challenging the class definition.
Thus, we still must consider whether expired claimants—
the only other subgroup of claimants, besides present
claimants, that satisfies the jurisdictional requirements
under 38 U.S.C. § 7252—were improperly excluded from
the certified class, i.e., whether the court should have tolled
the appeal period for expired claimants.
Case: 21-1757 Document: 84 Page: 20 Filed: 09/08/2022
SKAAR v. MCDONOUGH 21
permit equitable tolling for past and expired 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 [the 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 the 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
Case: 21-1757 Document: 84 Page: 21 Filed: 09/08/2022
22 SKAAR v. MCDONOUGH
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 vacate the class certification,
we also limit the application of the merits
decision to Mr. Skaar’s claim.
VACATED AND REMANDED
COSTS
No costs.
Case: 21-1757 Document: 84 Page: 22 Filed: 09/08/2022

  1. Finding that it did, the court certified the class, excluding
    past and expired claimants. Id. at 201. It defined
    the class as follows:
    [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 been denied and relevant
    appeal windows of those denials have
    expired . . . .
    Id. at 189.
    Case: 21-1757 Document: 84 Page: 9 Filed: 09/08/2022
    10 SKAAR v. MCDONOUGH
    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. 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 38 U.S.C. § 7292. Unlike other statutory
    provisions that govern our jurisdiction, § 7292 does not
    expressly premise appellate review on the finality of the
    Veterans Court’s decision. Compare 28 U.S.C. § 1295(a)(1)
    (conferring jurisdiction over “an appeal from a final decision
    of a district court”), with 38 U.S.C. § 7292(a) (“After a
    decision of the [Veterans Court] is entered in a case, any
    party to the case may obtain a review of the decision . . . .”).
    Nevertheless, we have “generally declined to review nonfinal
    orders of the Veterans Court.” Williams v. Principi,
    275 F.3d 1361, 1363 (Fed. Cir. 2002) (citation omitted). So
    Case: 21-1757 Document: 84 Page: 10 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 11
    “remand orders from the Veterans Court ordinarily are not
    appealable because they are not final.” Adams v. Principi,
    256 F.3d 1318, 1320 (Fed. Cir. 2001). We will, however, depart
    from this strict rule of finality when the Veterans
    Court remands a matter for further proceedings if the following
    conditions are satisfied:
    (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 resolution 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 jurisdictional statute that is separate from the remand
    proceeding involving 38 C.F.R. § 3.311(c) and dose
    estimates. Compare Class Certification, 32 Vet. App. at
    166 (“We do not today address the merits of Mr. Skaar’s
    claim.”), with Merits Decision, 33 Vet. App. at 132 (“Today
    we address the merits of Mr. Skaar’s appeal . . . . Beginning
    with the class claim concerning radiation dose estimates,
    we hold that the Board failed to meet its obligation
    Case: 21-1757 Document: 84 Page: 11 Filed: 09/08/2022
    12 SKAAR v. MCDONOUGH
    under 38 C.F.R. § 3.311(c) to ensure that dose estimates
    [the agency] received from the Air Force constitute ‘sound
    scientific evidence.’ We will remand this issue to the
    Board . . . .”).
    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 have not filed claims for benefits.2
    2 The Veterans Court’s resolution of the jurisdictional
    issue not only affects the Secretary but also affects
    Mr. Skaar and similarly situated Palomares veterans who
    might benefit from a precedential opinion regarding the
    § 3.311 challenge. See Merits Decision, 33 Vet. App. at 151
    (Meredith, J., concurring in part and dissenting in part) (“I
    am compelled to comment that the result here demonstrates
    that the en banc Court’s resurrection of the limited
    remand mechanism, for the purpose of deciding
    [Mr. Skaar’s] motion for class certification, turned out not
    to be an effective tool. More than 3 years after [Mr. Skaar]
    appealed the April 2017 Board decision, the panel is left
    with no choice but to conclude that the Board provided an
    inadequate statement of reasons or bases for its decision
    and to remand the matter for readjudication—the same relief
    that the en banc Court could have, and in my view,
    should have initially provided. Instead, the parties and the
    en banc Court expended considerable time and resources
    debating the efficacy of conducting class actions in the appellate
    context and the bounds of the Court’s jurisdiction,
    without bringing [Mr. Skaar] any closer to receiving a decision
    that adequately addresses the merits of whether the
    dose estimates relied on by [the agency] are based on a
    methodology that complies with 38 C.F.R. § 3.311(c).” (citations
    omitted)); see also Class Certification, 32 Vet. App.
    Case: 21-1757 Document: 84 Page: 12 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 13
    See 38 U.S.C. § 5101(a)(1)(A); Travelstead, 978 F.2d at
    1248.
    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 claim. See 38 U.S.C. § 7252(a);
    see also Merits Decision, 33 Vet. App. at 154 (Meredith, J.,
    concurring in part and dissenting in part) (“[T]he Board’s
    inadequate statement of reasons or bases frustrates judicial
    review, precluding [the Veterans Court’s] ability to provide
    the requested class-wide relief and compelling [the
    court] to remand the matter for full readjudication without
    retaining jurisdiction. And, [the court] ha[s] no reason to
    assume that further adjudication of the [veteran’s] claim
    will lead to a final Board decision adverse to the [veteran]
    or subsequent appellate review of the class issue for which
    he is the representative.”). Thus, we may exercise jurisdiction
    over the court’s class certification decision. See Dambach
    v. Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000) (“We do
    have jurisdiction . . . when there is a statutory
    at 209 (Falvey, J., dissenting) (“We believe that the majority
    has created a class that exceeds our jurisdiction and offers
    a comparable outcome to members of that class that a
    precedential decision could provide without the manageability
    and preclusion problems inherent in class litigation.”);
    id. at 221 (“If we had an adequate record, a panel
    might have, months ago, found that the dose methodology
    [the agency] used in Mr. Skaar’s case was flawed and counter
    to 38 C.F.R. § 3.311. Its decision, a nationwide precedent,
    would have fixed any such systemic dose estimate
    problem and [the agency] would have been required to apply
    the Court’s holding consistently to all veterans’ cases.”).
    Case: 21-1757 Document: 84 Page: 13 Filed: 09/08/2022
    14 SKAAR v. MCDONOUGH
    interpretation that will affect the remand proceeding and
    that legal issue might evade our future review.”).
    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.” 38 U.S.C. § 7292(c). But our jurisdiction does not
    extend to challenges either to factual determinations or to
    the application of the law to the facts of a particular case,
    absent a constitutional issue. Id. § 7292(d)(2). Whether the
    Veterans Court had jurisdiction is a matter of statutory interpretation,
    see id. § 7252(a) (defining the Veterans
    Court’s jurisdiction), which we review de novo, In re Wick,
    40 F.3d 367, 370 (Fed. Cir. 1994). Likewise, whether the
    Veterans Court applied the correct legal standard for equitable
    tolling is a question of law we review de novo. James
    v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir. 2019).
    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 Secretary 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.
    Case: 21-1757 Document: 84 Page: 14 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 15
    A
    The 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.
    While the Veterans Court correctly acknowledged that “a
    final Board decision operates as the jurisdictional ‘trigger’
    that gives [it] the authority to hear a particular appeal,”
    the court held “that because Mr. Skaar, as class representative,
    ha[d] obtained a final Board decision pursuant
    to [§] 7252, the jurisdictional door ha[d] been opened, and
    [the Veterans Court] may use [its] other authorities, as explained
    in Monk [], to aggregate Mr. Skaar’s claims with
    those of the remaining class members.” Class Certification,
    32 Vet. App. at 181. This was error. See Weinberger v. Salfi,
    422 U.S. 749, 753 (1975) (“[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.”).
    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
    Case: 21-1757 Document: 84 Page: 15 Filed: 09/08/2022
    16 SKAAR v. MCDONOUGH
    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 authority 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:
    38 U.S.C. § 7252(a).” Class Certification,
    32 Vet. App. at 180 (citing Henderson v. Shinseki, 562 U.S.
    428, 434 (2011)); see Burris, 888 F.3d at 1357 (“The Veterans
    Court, as an Article I tribunal, is a creature of statute
    by definition. As such, the court can only act through an
    express grant of authority from Congress.” (citations omitted)).
    This jurisdictional statute empowers the Veterans
    Court to review decisions of the Board and confers upon the
    court “the power to affirm, modify, or reverse a decision of
    the Board or to remand the matter, as appropriate.”
    38 U.S.C. § 7252(a) (emphasis added). Thus, the Veterans
    Court’s jurisdiction is “premised on and defined by the
    Case: 21-1757 Document: 84 Page: 16 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 17
    Board’s decision concerning the matter being appealed,”
    Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998), where
    “‘decision’ of the Board, for purposes of the Veterans
    Court’s jurisdiction under [§] 7252, is the decision with respect
    to the benefit sought by the veteran,” Maggitt v. West,
    202 F.3d 1370, 1376 (Fed. Cir. 2000) (emphasis added).
    This means that “a veteran must first present a request for
    a benefit to the Board, then receive a decision on that request,
    in order to vest jurisdiction in the Veterans Court to
    consider the veteran’s request and arguments in support
    thereof.” Id. By definition, therefore, a class must be limited
    to veterans who satisfy the jurisdictional requirements
    of having requested a benefit and of having received a
    Board decision on that request.3 See, e.g., Matthews v. Eldridge,
    424 U.S. 319, 328 (1976) (“The nonwaivable element
    is the requirement that a claim for benefits shall have
    been presented to the Secretary. Absent such a claim there
    can be no ‘decision’ of any type. And some decision by the
    Secretary is clearly required by the statute.”); Salfi,
    422 U.S. at 750, 764 (“The [d]istrict [c]ourt had no
    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.’” Matthews v. Eldridge, 424 U.S.
    319, 328 (1976). Both the statutory language and the provision’s
    “placement within the [Veterans’ Judicial Review
    Act]” make clear “that Congress wanted that provision to
    be treated as having jurisdictional attributes,” since § 7252
    “governs [the Veterans Court’s] adjudicatory capacity.”
    Henderson, 562 U.S. at 434–35, 439–40 (comparing § 7252
    with § 7266 and holding that § 7266 is not jurisdictional).
    Thus, in relying on Bowen as a basis for jurisdiction over
    present-future and future-future claimants, see Class Certification,
    32 Vet. App. at 184, the Veterans Court erroneously
    conflated jurisdiction and exhaustion, see Matthews,
    424 U.S. at 328.
    Case: 21-1757 Document: 84 Page: 17 Filed: 09/08/2022
    18 SKAAR v. MCDONOUGH
    jurisdiction over the unnamed members of the class under
    42 U.S.C. [§] 405(g), . . . since the complaint as to such class
    members is deficient in that it contains no allegations that
    they have even filed an application for benefits with the
    Secretary, much less that he has rendered any decision, final
    or otherwise, review of which is sought.”).
    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 38 U.S.C. §§ 7104(a) (jurisdiction
    of the Board to review the Secretary’s final decisions),
    511 (decisions of the Secretary)—and veterans who
    have not received a Board decision, see id. § 7252(a). That
    is, the Veterans Court lacked jurisdiction over past, present-
    future, and future-future claimants, since none of
    these claimants had received a Board decision. Cf. Wick,
    40 F.3d at 370 (“Since it is clear that the action of the Secretary
    in denying payment to Wick was not a decision of
    the Board, it would seem equally clear that the court lacks
    jurisdiction over Wick’s petition from that denial.”).
    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 jurisdiction encompassing such claims. See
    28 U.S.C. § 1367(a) (“[I]n any civil action of which the district
    courts have original jurisdiction, the district courts
    shall have supplemental jurisdiction over all other claims
    that are so related to claims in the action within such original
    jurisdiction that they form part of the same case or
    controversy . . . . Such supplemental jurisdiction shall include
    claims that involve the joinder or intervention of additional
    parties.”); Exxon Mobil Corp. v. Allapattah Servs.,
    Inc., 545 U.S. 546, 560 (2005) (explaining that Ҥ 1367
    Case: 21-1757 Document: 84 Page: 18 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 19
    confers supplemental jurisdiction over claims by . . . Rule
    23 plaintiffs,” i.e., members of a class action, over which it
    may lack original jurisdiction as long as it has original jurisdiction
    over at least one class member’s claim). Critically,
    Congress has not enacted any comparable
    jurisdictional statute for the Veterans Court. While district
    courts may exercise supplemental jurisdiction over future
    claimants by virtue of their explicit statutory authority, the
    Veterans Court lacks such jurisdictional authority. Each
    court is limited to the jurisdiction bestowed upon it by Congress.
    Thus, the cases Mr. Skaar cites about the scope of
    district court jurisdiction are inapplicable where, as here,
    the Veterans Court has its own jurisdictional statute.
    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
    4 Although we vacate the class certification for lack
    of jurisdiction, our decision does not bar the Veterans Court
    Case: 21-1757 Document: 84 Page: 19 Filed: 09/08/2022
    20 SKAAR v. MCDONOUGH
    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 “proceed[
    ing] on a ‘case-by-case basis.’” Id. at 1239; Cross-
    Appellant’s Br. 49.
    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
    from considering again on remand whether class certification
    is appropriate, provided that the court has jurisdiction
    over each individual member of the proposed class. The
    court could, for example, consider whether certifying a
    class of present claimants is proper. It follows then that our
    decision to vacate the class certification does not moot
    Mr. Skaar’s cross-appeal challenging the class definition.
    Thus, we still must consider whether expired claimants—
    the only other subgroup of claimants, besides present
    claimants, that satisfies the jurisdictional requirements
    under 38 U.S.C. § 7252—were improperly excluded from
    the certified class, i.e., whether the court should have tolled
    the appeal period for expired claimants.
    Case: 21-1757 Document: 84 Page: 20 Filed: 09/08/2022
    SKAAR v. MCDONOUGH 21
    permit equitable tolling for past and expired 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 [the 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 the 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
    Case: 21-1757 Document: 84 Page: 21 Filed: 09/08/2022
    22 SKAAR v. MCDONOUGH
    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 vacate the class certification,
    we also limit the application of the merits
    decision to Mr. Skaar’s claim.
    VACATED AND REMANDED
    COSTS
    No costs.
    Case: 21-1757 Document: 84 Page: 22 Filed: 09/08/2022

Powered by WordPress.com.