Skaar v. McDonough

Citation57 F.4th 1015 (Mem)
Decision Date17 January 2023
Docket Number2021-1757, 2021-1812
Parties Victor B. SKAAR, Claimant-Cross-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellant
CourtU.S. Court of Appeals — Federal Circuit

Michael Joel Wishnie, Veterans Legal Services Clinic, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT, for claimant-cross-appellant. Also represented by Meghan Brooks, Nathan Hernandez, Caroline Markowitz, Camilla Reed-Guevara. Also represented by Lynn K. Neuner, Anthony Piccirillo, Simpson Thacher & Bartlett LLP, New York, NY.

Sosun Bae, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellant. Also represented by Brian M. Boynton, Martin F. Hockey, Jr., Patricia M. McCarthy ; Brian D. Griffin, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Moore, Chief Judge, Newman, Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, Cunningham, and Stark, Circuit Judges.

Dyk, Circuit Judge, with whom Reyna, Stoll, Cunningham, and Stark, Circuit Judges, dissents from the denial of the petition for rehearing en banc.


Per Curiam.

Victor B. Skaar filed a combined petition for panel rehearing and rehearing en banc. A response to the petition was invited by the court and filed by Denis McDonough. The petition was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc was referred to the circuit judges who are in regular active service. The court conducted a poll on request, and the poll failed.

Upon consideration thereof,


The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue January 24, 2023.

Dyk, Circuit Judge, with whom Reyna, Stoll, Cunningham, and Stark, Circuit Judges, join, dissenting from the denial of the petition for rehearing en banc.

This case centrally concerns the availability of class actions for veterans' benefits claims. The panel decision here effectively eliminates such class actions for veterans and in doing so contradicts established Supreme Court precedent. We respectfully dissent from the denial of en banc rehearing.


For many years the system for processing veterans' claims has been inefficient and subject to substantial delays to the disadvantage of our nation's veterans. The Department of Veterans Affairs ("VA") currently has over 685,000 pending disability compensation and pension claims. See Veterans Benefits Administration Reports: Claims Inventory , U.S. Dep't of Veterans Affs. (current as of Dec. 17, 2022), (hereafter "Claims Inventory "). This backlog causes significant delays in adjudicating claims, as we concluded in Ebanks v. Shulkin , 877 F.3d 1037, 1038 (Fed. Cir. 2017). The Committee Report to the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105, noted that, at the time, there were approximately 470,000 pending appeals to the Board, and the VA projected that, without changes, by 2027 the wait for claimants to receive a final appeals decision would be ten years. See H.R. Rep. No. 115-135, at 5 (2017). The Committee Report concluded "VA's current appeals process is broken." Id.

While there have been some improvements in the last five years to the number of appeals pending at the Board of Veterans' Appeals, there are still about 210,000 appeals pending before the Board. Board of Veterans' Appeals: Decision wait times , U.S. Dep't of Veterans Affs. (last visited Dec. 12, 2022), The number of claims awaiting an initial decision from the VA has more than doubled in the last five years, from about 320,000 in mid-2017 to more than 680,000 in 2022. See Claims Inventory, supra.

The class action mechanism, first approved in our decision in Monk v. Shulkin , 855 F.3d 1312 (Fed. Cir. 2017), promised to help ameliorate these problems to some significant extent, enabling veterans in a single case to secure a ruling that would help resolve dozens if not hundreds of similar claims. In Monk , we recognized that aggregate treatment of claims at the Veterans Court could "promot[e] efficiency, consistency, and fairness, and improv[e] access to legal and expert assistance by parties with limited resources." Id. at 1320.

The decision here will effectively eliminate class actions in the veterans' context by limiting the class to those who have already appealed and those who have secured a Board decision and can (indeed must) file appeals with the Veterans Court within 120 days, a step that would make them named parties to an appeal. The majority of claimants—all others with pending or future claims—would not be eligible for class treatment.1

The panel opinion here does not suggest that class actions for veterans are undesirable or of limited utility but rather rests on the mistaken notion that the jurisdiction of the Veterans Court over class actions is limited to situations where the class members had already secured a final decision from the Board of Veterans' Appeals. Skaar v. McDonough , 48 F.4th 1323, 1325 (Fed. Cir. 2022) ; see 38 U.S.C. § 7252(a) (granting the Veterans Court "power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate").

Precedential decisions of the Veterans Court are no substitute for the class action mechanism—those decisions are rare, see Monk , 855 F.3d at 1321, not binding on the government, see Wolfe v. McDonough , 28 F.4th 1348, 1358 (Fed. Cir. 2022), and, in any event, ill-suited to resolving factual disputes such as those involved here. Nor are precedential decisions of this court. See 38 U.S.C. § 7292(d)(2) (barring Federal Circuit jurisdiction, in the absence of a constitutional issue, to "review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case").

The unhappy adverse consequence of eliminating class actions speaks to the importance of this case.


Review is particularly important since there are substantial flaws in the panel's analysis, which is at odds with Supreme Court decisions.

First, the very purpose of class actions is to bring before the court claimants who have not perfected their claims by bringing their own individual suits. Class actions can be beneficial and superior to individual litigation precisely because they permit the aggregation of claims not yet filed in court. Class actions do not merely consolidate claims already filed in court, but aggregate in a single suit claims that have not been filed. See Sullivan v. DB Invs., Inc. , 667 F.3d 273, 310–11 (3d Cir. 2011) (en banc) (recognizing a class action's ability to achieve "global peace" including "potential plaintiffs who had not yet filed cases").

Second, the class action mechanism is not created by § 7252(a), nor is it cabined to only those who presently satisfy the jurisdictional requirements of that section. Rather, the class action mechanism is created by the All Writs Act, 28 U.S.C. § 1651, as our decision in Monk concluded, and as at least one other circuit has held in similar circumstances in which Federal Rule of Civil Procedure 23 is unavailable.2 A class action mechanism under the All Writs Act can be "in aid of" the court's jurisdiction, 28 U.S.C. § 1651(a), and may reach future claims over which jurisdiction has not yet been perfected but would be perfected in the future. See Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 25, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) ("[A circuit court's] authority is not confined [under the All Writs Act] to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected."); Klay v. United Healthgroup, Inc. , 376 F.3d 1092, 1099 (11th Cir. 2004) ("[T]he [All Writs] Act allows [courts] to safeguard not only ongoing proceedings, but potential future proceedings ...." (citation and footnotes omitted)); 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3932 (3d ed. 2022).

Third, the panel's reading of the Supreme Court's decision in Weinberger v. Salfi , 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and later cases, as barring class actions where all class members have not yet satisfied the requirements of § 7252 is clearly mistaken. In Weinberger , the court considered a Social Security Act jurisdictional provision similar to § 7252(a), providing that "[a]ny individual, after any final decision of the Secretary [of the Department of Health, Education, and Welfare] made after a hearing to which he was a party ... may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision." 42 U.S.C. § 405(g) (1976).3 The panel concluded that Weinberger held: "[W]hile [the court] had jurisdiction of the claims of the named appellees under the provisions of 42 U.S.C. § 405(g), it had no jurisdiction over the claims asserted on behalf of unnamed class members." Skaar , 48 F.4th at 1332 (quoting Weinberger , 422 U.S. at 753, 95 S.Ct. 2457 ) (alterations in Skaar ).

While this is accurate, the panel failed to note that the reason that the court lacked jurisdiction over the unnamed class members was that they had not even filed a claim with the agency. As the Supreme Court concluded shortly thereafter in Mathews v. Eldridge , "the complaint [in Weinberger ] was found to be jurisdictionally deficient since it ‘contained no allegations that [unnamed members of the class] ha[d] even filed an application with the Secretary ....’ " 424 U.S. 319, 329, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (ellipses in original and modification omitted) (quo...

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