Skaar v. Wilkie

• Decision Date: 01 February 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

February 1, 2019

Before DAVIS, Chief Judge, and SCHOELEN, PIETSCH, BARTLEY GREENBERG, ALLEN, MEREDITH, TOTH, and FALVEY, Judges.

ORDER

PER CURIAM.

The appellant Victor B. Skaar appeals an April 14, 2017, Board of Veterans' Appeals (Board) decision that denied service connection for leukopenia, including as due to radiation exposure. On December 11, 2017, he filed a motion for class certification or aggregate resolution, requesting that the Court certify a class of 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 [VA] has denied or will deny." Appellant's Dec. 11, 2017 Motion (Mot.) at 1; see Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017) (holding that this Court has the authority to entertain class actions in the petition context). He contends in part that the methodology VA uses to estimate ionizing radiation doses for Palomares veterans is not "sound scientific evidence" under 38 C.F.R § 3.311(c)(3).^[1] See Appellant's Dec. 11 2017, Mot. at 3-6.

Before the Board issued its April 2017 decision, the appellant had expressly challenged the methodology VA used to measure radiation exposure under 38 C.F.R. § 3.311. See Record at 106-107, 778-83. Yet, the Board failed to adjudicate or address that argument whatsoever. The Board is required to "adjudicate all issues reasonably raised" by the record and, of course, those that are expressly raised. Brannon v. West, 12 Vet.App. 32, 35 (1998); see also Urban v. Principi, 18 Vet.App. 143, 145 (2004). The Board did not do that here, and that failure is error. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or by the evidence of record). Moreover, without an adequate statement of reasons or bases from the Board, we cannot effectively and efficiently review the instant appeal, including deciding the motion for class certification. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); see also 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

Accordingly, we order a limited remand for the Board to provide a supplemental statement of reasons or bases addressing the appellant's expressly raised argument in the first instance. On remand to the Board, the appellant has 90 days to submit any additional evidence he may have, including the evidence submitted to this Court, to the Board. See Clark v. O'Rourke, 30 Vet.App. 92, 97 (2018). Further, under Cook v. Snyder, 28 Vet.App. 330, 343 (2017), the appellant has the right to request a Board hearing. The Board must then provide a supplemental statement of reasons or bases addressing the appellant's argument concerning 38 C.F.R. § 3.311, within 30 days after the 90-day evidence-submission period expires or within 30 days after the appellant affirmatively waives his right to submit evidence, whichever comes first. See Clark, 30 Vet.App. at 97 (holding that the 90-day evidence-submission period can be shortened with "a voluntary, knowing, and intentional waiver of that right"). Once the Board issues that supplemental statement, the Secretary will file it with the Court within 3 days after the Board issues the statement. The parties will then submit supplemental briefs concerning the effect, if any, of the Board's supplemental statement on the issues raised in this appeal, including class certification. We hold the appellant's motion for class certification in abeyance until the parties have fully complied with this order.

We will retain jurisdiction over this matter. "It is a common practice among the Courts of Appeals to retain jurisdiction over an appeal while making a limited remand for additional findings or explanations." In re Lipitor Antitrust Litig., 855 F.3d 126, 151 (3d Cir. 2017). Appellate courts may retain jurisdiction for the "purpose of facilitating immediate review of further trial court proceedings." C. Wright, 16 Federal Practice and Procedure § 3937.1, at 847-48 (3d ed. 2012). This Court has ordered such limited remands before. For example, in Mayfield v. Nicholson, the Court ordered the Board to "provide a supplemental statement of reasons or bases" and instructed it to "not take any further action beyond the response required by this order unless and until the Court relinquishes jurisdiction over the matter." 20 Vet.App. 98, 99 (2006) (per curiam order); see also, e.g., Sellers v. Shinseki, No. 08-1758, 2011 WL 2110038, at *2 (U.S. Vet. App. May 27, 2011) (unpublished per curiam order).

Other Federal appellate courts also frequently use limited remand orders. See, e.g., Media v. Garcia, 874 F.3d 1118, 1122 (9th Cir. 2017); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002); Cent. States v. Creative Dev. Co., 232 F.3d 406, 423 (5th Cir. 2000) (same); Asani v. I.N.S., 154 F.3d 719, 729 (7th Cir. 1998); Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997); see also Fed. R. App. P. 12.1(b) (discussing limited remands in the context of an "indicative ruling" by a district court). Such limited remands are not restricted only to district courts but extend to agencies as well. See, e.g., Ucelo v. Gonzales, 464 F.3d 163, 172 (2d Cir. 2006); Caterpillar, Inc. v. NLRB, 138 F.3d 1105, 1107 (7th Cir. 1998); Am. Gas Assn'n v. FERC, 888 F.2d 136, 142 (D.C. Cir. 1989); Sierra Club v. Gorsuch, 715 F.2d 653, 661 (D.C. Cir. 1983); Sharron Motor Lines, Inc. v. ICC, 633 F.2d 1115, 1118-19 (5th Cir. 1981); Consol. Nine, Inc. v. F.C.C., 403 F.2d 585, 595 (D.C. Cir. 1968).

In Cleary v. Brown, 8 Vet.App. 305, 308 (1995), the Court held that "when this Court remands for a new and discrete [Board] decision, it loses jurisdiction over the matter until such time, if at all, as a new [Board] decision is properly appealed." Cleary effectively stands for the proposition that decisionmaking should not simultaneously occur at both the Board and the Court. This is not a new concept. Indeed, Cleary supported its holding by citing Cerullo v. Derwinski, 1 Vet.App. 195 (1991), which held it inappropriate for the Board to vacate, sua sponte, a decision on appeal after a timely Notice of Appeal had been filed. To the extent Cleary could be read to prohibit the Court from ever retaining jurisdiction over a remand to the Board, we clarify that the Court may, in certain circumstances, retain jurisdiction over limited remands to the Board. It is also worth noting that, unlike Cleary, where there was nothing left to review of the original Board decision, here the decision is still pending at the Court and what we require from the Board is not a new decision, but a supplemental statement of reasons or bases pertaining to a claim it already decided.

We do not here attempt to lay out the circumstances in which we will employ such limited remands; however, this particular case involves a situation where the Court does not need to vacate the Board decision on appeal-a distinguishing characteristic in both Mayfield and Sellers. Instead, we require a supplemental statement of reasons or bases from the Board concerning the appellant's expressly raised challenge to § 3.311, without which we cannot meaningfully consider the appellant's class certification motion. Soliciting a supplemental response from the Board, without vacating the decision on appeal, for the discrete purpose of evaluating a class certification motion arising from that appeal-an issue of first impression at the Court-is undoubtedly a unique circumstance. Accordingly, the Court deems it appropriate under the facts of this case to retain jurisdiction while ordering a limited remand.

Upon consideration of the foregoing, it is

ORDERED that the case is REMANDED to the Board solely for the Board to provide a supplemental statement of reasons or bases addressing the appellant's expressly raised argument concerning 38 C.F.R. § 3.311. It is further

ORDERED that the Court will retain jurisdiction over this matter. It is further

ORDERED that, regardless of the outcome of the Board's determination on remand, the Board shall not take any further action beyond the response required by this order unless and until the Court relinquishes jurisdiction over the matter. It is further

ORDERED that, on remand to the Board, the appellant, absent waiver, will have 90 days to submit to the Board any additional evidence he may have, including the evidence he submitted to this Court. It is further

ORDERED that the Board will provide a supplemental statement of reasons or bases addressing the appellant's argument concerning 38 C.F.R. § 3.311 within 30 days after the 90-day evidence-submission period expires or within 30 days after the appellant affirmatively waives right to submit evidence within the remaining time to submit evidence, whichever comes first. It is further

ORDERED that the Secretary will file the Board's supplemental statement with the Court within 3 days after the statement is issued. It is further

ORDERED that the appellant submit a supplemental brief, not to exceed 10 pages, concerning the effect, if any, of the Board's supplemental statement on the issues raised in this appeal, within 10 days after the Secretary files the supplemental statement. It is further

ORDERED that the Secretary submit a supplemental brief, not to exceed 10 pages, concerning the effect, if any, of the supplemental statement on the issues raised in this appeal, within 10 days after the appellant files his supplemental brief. It is further

ORDERED that the appellant may file a reply, not to exceed 5 pages in...