Skaar: Class Action Certifications and Limited Remands

Skaar v. Wilkie, Case Number 17-2574, is a February 1, 2019 order related to a motion for class certification for veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain.  Recognizing the significances of this decision, this was an en banc decision, meaning it was made not by a smaller panel of the Court but by the entire court.  The motion was not granted, but the case remanded to the Board under a relatively new procedure called a limited remand.

The veteran sought class certification through his counsel, which would allow for a decision and class action against the VA that would prevent each individual veteran exposed to plutonium dust at Palomares, Spain from having to re-litigate the same issues.  Substantively, among other things they were attacking the methodology the VA used to estimate ionizing radiation doses for Palomares veterans and arguing that method is not sound scientific evidence.

The Court noted:

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.  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.

Id. at *1.

As a result the Court ordered a limited remand to the Board to provide a supplemental statement of reasons or bases to address the appellant’s argument that the methodology to reach estimated radiation doses was not sound scientifically. The Court also created timelines for the decision and states that it is retaining jurisdiction over the matter.  This decision created a jurisdictional problem with the Court in that prior case law suggested that decisionmaking could not be simultaneously at the Board and Court.  See Cleary v. Brown, 8 Vet.App. 305, 308 (1995).  As a result, the Court determined

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.

Id. at *3.

The Court concluded by trying to limit the holding and stated:

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.

Id. at *3.

C.J. Davis wrote a concurrence emphasizing the usefulness of a limited remand and that the Court has “broad discretion to define the scope of its remand authority—limited or general.”  He seemed to want to clarify the groundwork for a determination that the Court had this power.

Judge Schoelen also wrote a concurrence to emphasize her view that a limited remand should be rarely used and laying out the circumstances when it is appropriate.  She explains:

the considerable time that has already been invested in litigation before the en banc Court, coupled with the harm that could potentially befall a sizeable class of veterans, takes what would be a common legal error and escalates it to an extraordinary circumstance that I believe warrants a limited remand. Stated differently, I respectfully believe the dissent is too myopic in seeing this as a "common" error, and that the Court must look at the situation as a whole, not just at the discrete legal error that necessitates remand. Thus, I concur that overruling Cleary and exercising procedural authority that we retain by nature of our existence as a Federal appellate court is the proper course of action, and any precedent we set today should make clear when it is appropriate to use a limited remand to clear up something such as a reasons-or-bases error.

Id. at *5.

She then presented a two part test to determine when a limited remand should be used: “(1) As a threshold matter, the case must concern a precedential matter (i.e., the case is being considered before a panel of Judges or the en banc Court), and (2) once the Court

determines that threshold has been met, it must decide whether some extraordinary circumstance is present.”

Judges Pietsch, Meredith and Falvey dissented.  The dissent focuses on the statutory circumscribed limits on the Court’s authority and determines the limited remand cannot be used by the Court.

The use of class actions in VA benefits is one of first impression how such class actions are used and whether they are useful will be watched in the years to come.  However, it is clear from this order that some members of the Court are willing to embrace larger powers necessary to manage a class action case whereas at least three members are opposed to the use of such powers.  This is just the first salvo in what will be long-term development of this area of the law.

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