Skaar v. Wilkie

• Decision Date: 06 December 2019
• Docket Number: 17-2574
• Court: United States Court of Appeals For Veterans Claims
• Parties: Victor B. Skaar, APPELLANT, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Victor B. Skaar, APPELLANT, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 17-2574

United States Court of Appeals For Veterans Claims

December 6, 2019

Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG, ALLEN MEREDITH, TOTH, FALVEY, Judges; and DAVIS and SCHOELEN Senior Judges. ^[*]

ORDER

United States Air Force veteran Victor B. Skaar was exposed to ionizing radiation while participating in the cleanup of plutonium dust in Palomares, Spain, following a midair aircraft collision. He later developed a blood disorder leukopenia, which he believes was caused by in-service radiation exposure, even though an Air Force radiation dose estimate found the levels of exposure he suffered far below those required to cause his disability. In an April 14, 2017 decision the Board of Veterans' Appeals (Board) denied him service connection. This appeal followed.

We do not today address the merits of Mr. Skaar's claim. Rather, we consider his motion to certify a class of similarly situated veterans to proceed in an aggregate action. The issue we confront here-class certification in the context of an appeal of an individual Board decision-is one of first impression. For many years, we held this Court categorically lacked the power to certify classes. See Monk v. McDonald, No. 15-1280, 2015 WL 3407451, at *3 (May 27, 2015) (Monk I); Harrison v. Derwinski, 1 Vet.App. 438, 439 (1991) (en banc) (per curiam); Lefkowitz v. Derwinski, 1 Vet.App. 439, 440 (1991) (en banc) (per curiam). This changed when the United States Court of Appeals for the Federal Circuit (Federal Circuit) held we possess, at least in certain contexts, the authority to certify class actions. Monk v. Shulkin, 855 F.3d 1312, 1321-22 (Fed. Cir. 2017) (Monk II). We then held we would, in appropriate cases, certify classes seeking writs of mandamus under the All Writs Act. Monk v. Wilkie (Monk III), 30 Vet.App. 167, 174 (2018); see, e.g., Godsey v. Wilkie, 31 Vet.App. 207, 220-25 (2019); see also Wolfe v. Wilkie, __ Vet.App.__, No. 18-6091, 2019 WL 4254039, at *14-19 (Sept. 9, 2019).

This brings us to Mr. Skaar's motion for class certification. We hold (1) the Court may, in appropriate situations, certify classes in the context of an individual appeal of a Board decision; (2) our jurisdiction allows us to include in such classes both persons who have obtained a final Board decision as well as those who have not; and (3) as in the petition context, we will use Federal Rule of Civil Procedure 23 as a guide when deciding whether to grant class certification. Finally, class certification will be reserved for those cases where appellants demonstrate the class device is a superior vehicle for litigating the class claim than a precedential decision. Applying these principles, we grant in part and deny in part the motion for class certification.

TABLE OF CONTENTS

I. BACKGROUND ........................................................................................................................ 4

II. ANALYSIS ............................................................................................................................... 8

A. Standing ................................................................................................................................. 9

1. Mr. Skaar lacks standing to pursue the § 3.309 claim on behalf of the class.................... 9

2. Mr. Skaar has standing to pursue the § 3.311 claim on behalf of the class..................... 10

B. The Power To Certify Class Actions in the Appeal Context ............................................... 13

C. The Utility of Class Actions in the Appeal Context ............................................................. 14

D. The Proposed Class Composition ........................................................................................ 15

1. The Present-Future and Future-Future Claimants ........................................................... 16

2. The Expired Claimants ..................................................................................................... 22

3. The Past Claimants ........................................................................................................... 24

E. Class Certification Analysis ................................................................................................. 25

1. The proposed class is so numerous that joinder would be impracticable........................ 26

2. The proposed class presents a common issue capable of classwide resolution............... 27

3. Mr. Skaar's claim is typical of that of the proposed class................................................ 28

4. Mr. Skaar will fairly and adequately protect the interests of the class. . .......................... 29

5. The requested injunctive relief is appropriate respecting the class as a whole............... 29

6. The class action device is a superior method of litigating the class claim...................... 30

7. Proposed counsel is adequate.......................................................................................... 34

8. Generalized notice of class certification is required but opt out rights are not............... 35

III. CONCLUSION ..................................................................................................................... 36

I. BACKGROUND

In the early morning hours of January 17, 1966, a U.S. Air Force B-52 Superfortress bomber, armed with four thermonuclear weapons, collided with a KC-135 refueling tanker over the small fishing village of Palomares, Spain. See Record (R.) at 28-29, 560, 796-98, 1878-80, 3509, 3557-802. Part of Operation Chrome Dome, a U.S. military plan calling for continuous patrol by nuclear bombers around the airspace of the former Soviet Union, the bomber was supposed to refuel with the tanker for the trip home. R. at 3574-76. The midair collision destroyed both aircraft, and the bomber's atomic payload was scattered across the Spanish countryside. R. at 3605-07. Eventually, one weapon was recovered intact and another fished from the depths of the Mediterranean. R. at 3613-32. Emergency parachutes attached to the other two bombs, however, failed to deploy. R. at 3603-04. Both bombs impacted at high speeds, causing internal, nonnuclear explosives in the devices to detonate. R. at 3606-07. The resulting explosions released a cloud of radioactive plutonium dust over the area, contaminating soil and crops, and spreading radioactive debris for miles. R. at 1878.

Mr. Skaar, along with nearly 1, 400 other U.S. military personnel, was sent to the accident site to assist in cleanup and monitoring efforts. While there, to assess possible radioactive exposure, the military personnel gave urine and nasal swab samples. Mr. Skaar was a member of a group of the 26 service members (the High 26) who were determined to be among the most exposed and who were monitored for a period of 18 to 24 months after the accident for signs of radiogenic conditions. R. at 2124-28. The monitoring efforts were discontinued, however, in December 1967 when the Air Force informed Mr. Skaar his "health is in no jeopardy from retention of radioactive materials as a result of participation in the [Palomares cleanup] operation." R. at 2430.

But in 1998, 32 years after the Palomares cleanup, Mr. Skaar was diagnosed with leukopenia, a decrease in white blood cell count. R. 2157. The diagnosing physician opined that exposure to ionizing radiation "[h]istorically does appear to be the positive agent" causing leukopenia, but concluded "we have been unable to prove this." Id. Mr. Skaar then filed a claim with VA, seeking service connection for that condition. R. at 2155. In February 2000, VA denied his claim. See R. at 2090-99. This was so, VA explained, because leukopenia is not a radiogenic disease VA recognizes as resulting from a "radiation-risk activity," and because Mr. Skaar had not presented sound scientific or medical evidence linking the disease to radiation exposure. R. at 2097.

Two separate regulatory paths lead to to service connection for veterans who suffer a disability they believe was caused by exposure to ionizing radiation. Both are at issue here as part of Mr. Skaar's motion for class certification. Under 38 C.F.R. § 3.309(d)(3)(ii), VA recognizes certain nuclear incidents as "radiation-risk activities." Those who participated in a radiation-risk activity listed in § 3.309 and who later developed one or more of the radiogenic diseases enumerated in § 3.309(d)(1) benefit from a presumption of service connection. § 3.309(a). For those who did not participate in a listed radiation-risk activity, § 3.311(a) is available. See Hilkert v West, 12 Vet.App. 145, 148-49 (1999) (en banc). Under that provision, VA requests exposure data from a veteran's service branch. 38 C.F.R. § 3.311(a)(1)-(2). For those claims that meet certain threshold requirements, the Under Secretary for Benefits then reviews the gathered information and determines whether "sound scientific and medical evidence supports the conclusion [that] it is at least as likely as not" the condition is the result of ionizing radiation exposure. § 3.311(a), (c). The regulation defines "sound scientific evidence" as "observations, findings, or conclusions which are statistically and epidemiologically valid, are statistically significant, are capable of replication, and withstand peer review," and "sound scientific medical evidence" as "observations, findings, or conclusions which are consistent with current medical knowledge and are so reasonable and logical as to serve as the basis of management of a medical condition." § 3.311(c)(3). In making that determination, the Under Secretary for Benefits may request an advisory...