# 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

______________________

C AROLINE M ARKOWITZ , Veterans Legal Services Clinic, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT, argued for claimant

- cross

- appellant. Also represented by M EGHAN B ROOKS , M ATTHEW H ANDLEY , A DAM H ENDERSON , J OSHUA H ERMAN , M ICHAEL J OEL W ISHNIE . Also argued by A NTHONY P ICCIRILLO , Simpson Thacher & Bartlett LLP, New York, NY

. Also represented by L YNN K. N EUNER

.

S OSUN B AE , Commercial Litigation Branch, Civil Case: 21-1757 Document: 84 Page: 1 Filed: 09/08/2022SKAAR v. MCDONOUGH 2

Division, United States Department of Justice, Washington, DC, argued for respondent

- appellant. Also represented by B RIAN M. B OYNTON , M ARTIN F. H OCKEY , J R ., P ATRICIA M. M C C ARTHY ; B RIAN D. G RIFFIN , J ONATHAN K RISCH , Office of General Counsel, United States Department of Veterans Affairs , Washington, DC

.

J ONATHAN D. S ELBIN , 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 , Al exander Reinert , Judith Resnik, Michael D. Sant'Ambrogio , Joan E. Steinman , Adam S. Zimmerman

. Also represented by Y AMAN S ALAHI , Edelson PC, S an Francisco, CA

.

D ORIS J OHNSON H INES , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP , Washington, DC , for amicus curiae National Veterans Legal Services Program.

______________________

Before M OORE , Chief Judge

, N EWMAN and H UGHES , Circuit Judges

. H UGHES , 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

- connect ed benefits , and t he 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 i n denying his clai m

. B y motion for class certification, Mr. Skaar sought to make this challenge on behalf of all Case: 21-1757 Document: 84 Page: 2 Filed: 09/08/2022SKAAR v. MCDONOUGH 3

similarly situated veterans who had participated in the Palomares cleanup operation. The Veterans Court certified a class, with Mr. Skaar servi ng as its representative, t hat includes veterans who ha d not received a Board decision and that excludes veterans who se claims had been denied but not timely appeal ed. See Skaar v. Wilkie , 32 Vet. App. 156, 201 (2 019) ( Class Certificatio n ). The Secretary of Veterans Affairs appeals

, and Mr. Skaar cross

- appeals

, the Veterans Court’s class definition.
On appeal, t he Secretary asserts that the VeteransCourt lacked authority to certify a class that includes veterans who ha d not received a Board dec ision

— a statutory
pre requisite for the court’s jurisdiction pursuant to 38 U.S.C. § 7252(a)

— because jurisdiction over Mr. Skaar’s individual claim d id not create further jurisdiction over a class of similarly situated veterans whose individual claims we re beyond the court’s jurisdiction. We agree. By certifying a class that includes veterans who ha d 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 appeal ed their denied claims since none of the claimants had alleged, let alone established, the requisit e due diligence in pursuing their rights. See Toomer v. McDonald , 783 F.3d 1229, 1237

– 38 (Fed. Cir. 201 5 ). Thus, s hould 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: 09/08/2022SKAAR v. MCDONOUGH 4

I

A
In January 1966, a United States Air Force B

- 52 bomber carry i ng four thermonuclear weapons collided midair with another aircraft. Two of the weapo ns crash ed 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 Certificatio n , 32 Vet. App. at 1 68 . “ 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 acciden t. 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 leukope nia, 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

- connect ed 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. T he Air Force

— the service branch responsible for provid ing the agency wi th 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: 09/08/2022SKAAR 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,
t he Under Secretary for Benefits found it unli kely 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, t he regional office denied Mr. Skaar’s claim , and h e appealed th e 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 underestimat ing doses for some individuals including Palomares veterans

. Consequently , “the Air Force in tended to ‘ formally standardize [ its ] responsemethodology for radiation dose inquiries involving Palomares participants ’ by establishing dose estimates based on each veteran’s specific duties.” Id. (alteration in original) (citation omitted).

A fter reeval uat ing its dose estimate methodolo gy , the Air Force provided the agency with revised dose estimate s 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 t hese 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 ag ain 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: 09/08/2022SKAAR v. MCDONOUGH 6

“ [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 h is 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 estimate s, 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 clean up. Id. at 170. The Veterans Court granted in part Mr. Skaar’s motion and certified a class to litigate the § 3.311 c hallenge

. 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 C ourt 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 comp osition 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 c hallenge. Class Certification

, 32 Vet. App. at 172. He has not appealed this holding

. Case: 21-1757 Document: 84 Page: 6 Filed: 09/08/2022SKAAR 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 file d 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 file d 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 cla imants).

Id. at 179

– 180. T he court determined that it ha s 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: 09/08/2022SKAAR v. MCDONOUGH 8

unique jurisdictional issue” since none of them have received final Board decisions. Id. Still, t he 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] statutor y 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 sa me 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. a t 18 1–8 2. Moreover, the court explained, Mr. Skaar’s Board decision had opened a “ju risdictional 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.

T hen , t urning to Bowen v. City of New York , 476 U.S. 467 ( 1986) for support

, the Veterans C ourt 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) thechallenged 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 en forcement.” Id. at 184

– 85

. The court applied this standard here

, and determined that it ha d jurisdiction over present

- future and future

- future claimants “and [need] not require exhaustion of administrati ve remedies by each and every class member.” Id. at 1 85. The Veterans C ourt accordingly included Case: 21-1757 Document: 84 Page: 8 Filed: 09/08/2022SKAAR v. MCDONOUGH 9

present

- future and future

- future claimants, along with

pr esent claimants, in the class. Id. at 186.
Next considering past and expired claimants, the c ourt d eclined to equitably toll the appeal period for claimant s who failed to timely appeal their denied claims and excluded both sub groups 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 t o.” 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 t he 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 1 89

. 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

- connecteddisability 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: 09/08/2022SKAAR v. MCDONOUGH 10

A year after certifying the class , the Veterans Court i ssue d 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 conclu ding 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 readjudicat e M r. Skaar’s § 3.311 challenge , further stating that “[t]his portion of [its] decision applies to the class certified in this matter.” Id. a t 143

– 44, 149. Following its merits decision,
t he 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 S tamp O rder , for the Panel, Denying Appellant’s Opposed Motion for Immedia te 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 Cour t is governed by 38 U.S.C. § 7292. Unlike other statutory provision s that gover n our jurisdiction, § 7292 does not expressly premise appellate review on the finality of the Veterans Court’s decision. Compare 28 U.S.C. § 129 5 (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

. . . .”). Neve rtheless, we have “generally declined to review non

final 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: 09/08/2022SKAAR v. MCDONOUGH 11

“ remand orders from the Veterans Court ordinarily are not appealable because they are not final

. ” Ad ams v. Principi

, 256 F.3d 1318, 1320 (Fed. Cir. 2001) . We will , however, d epart from th is strict rule of finality when the Veterans Cour t remand s a matter for further proceedings if the following conditions are satisfied:
(1) there must hav e been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will direct ly 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 c lass

c ertification satisfies these criteri a

.First, the Veterans Court issued a clear and final decision regarding its jurisdiction to certify a class that includes veterans who ha d not received a Board decision

. See Travel stead 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 proceedin g,” and was appealable) . T hat decision addressed a legal issue involving the Veterans Court’s jurisdictional statute that is separate from t he 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 Bo ard failed to meet its obligation Case: 21-1757 Document: 84 Page: 11 Filed: 09/08/2022SKAAR v. MCDONOUGH 12

under 38 C.F.R. § 3.311(c) to ensure that dos e 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 requir ing 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 jurisdiction al issue not only affects the Secretary but also affect s 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 dissent ing in part) (“Iam 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 bas e s 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 address es the merits of whether the dose estimates relied on by [the agency] are based on a method ology 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: 09/08/2022SKAAR v. MCDONOUGH 13

See 38 U.S.C. § 5101(a)(1)(A) ; Travelstead

, 978 F.2d at 1248.

T hird, there is a substantial risk that the remand proceeding may deprive the Secretary of an opportunity to later contes t the Veterans Court’s jurisdiction over the certified cla ss since the Secretary is statutorily precluded fromappealing 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 diss enting in part) (“[T]he Board’sinadequate 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 readjudicatio n 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 t he representative.”). Thus, we may exercise jurisdiction over the c ourt’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 outcom e to members of that class that aprecedential 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 methodol ogy [the agency] used in Mr. Skaar’s case was fl a wed and counter to 38 C.F.R. § 3.311. Its decision, a nationwide precedent, would have fixed any such systemic dose estimateproblem and [the agency] would have been required to apply the Court’s holding con sistently to all veterans’ cases.”). Case: 21-1757 Document: 84 Page: 13 Filed: 09/08/2022SKAAR v. MCDONOUGH 14

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 challengeto 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 eq uitable 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 w hich 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, whil e 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 b enefit from equitable tolling to revive claims that the y could have timely appealed following the Board’s denial. Case: 21-1757 Document: 84 Page: 14 Filed: 09/08/2022SKAAR v. MCDONOUGH 15

A

T he Veterans Court exceeded it s 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 C ourt correctly acknowledged that “a final Board decision operates as the jurisdictional ‘trig ger’ 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. Sal fi

, 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 jurisdictionover 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.” ( cleane d 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 VeteransCourt’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 Sch ool 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: 09/08/2022SKAAR v. MCDONOUGH 16

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 appropriat e ). 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 t he Veterans Court cannot invoke its authority to certify a class action in the appeal c ontext 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) ).

H ere, the Veterans Court has “only one source of jurisdiction: 38 U.S.C. § 7252(a).” Class Certification

, 32 Vet. Ap p. at 180 (citing Henderson v. Shinseki , 562 U.S. 428, 434 (2011)); se e Burris , 888 F.3 d at 135 7 (“The Veterans Court, as an Article I tribunal, is a creature of statute by definition. A s such, the court can only act through anexpress 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) . T hus, the Veterans Court’s jurisdiction is “premised o n and defined by the Case: 21-1757 Document: 84 Page: 16 Filed: 09/08/2022SKAAR 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). T his means that “a veteran must first present a request fora benefit to the Board, then receive a decision on that request, in order to vest ju risdiction 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. Abse nt 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. Eldridg e , 424 U.S. 319, 328 (1976). Both the statutory language and the provision’s “placement within the [V eterans’ J udicial Review A ct] ” make clear “that Congress wanted that provision to be treated as having jurisdictional attributes,” since § 7252 “governs [t he 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: 09/08/2022SKAAR v. MCDONOUGH 18

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 theSecretary, much less that he has rendered any decision, final or otherwise, revie w of which is sought.”).
Thus, t he Veterans Court exceeds its jurisdiction when it certif ies 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) (jurisdi ction 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

- fu ture 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 cour t 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 f uture 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 clai ms. 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 “§ 1367 Case: 21-1757 Document: 84 Page: 18 Filed: 09/08/2022SKAAR 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 cla ss 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 V eterans Court lacks such jurisdictional authority . Eachcourt 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 C ourt ha s its own jurisdiction al statute.

We accordingly vacate the Veterans C ourt’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 claim ant s , since no such claimants have received a Board decision

. B

On cr oss

- 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 appl ied this rule to the “more claimant

- friendly [V eterans’ J udicial R eview A ct] .” 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: 09/08/2022SKAAR v. MCDONOUGH 20

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 1 239; Cross

Appellant’s Br. 49.
Contrary to Mr. Skaar’s contentions, th e 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 Vetera ns C ourt “equate [the agency’s] adjudication of Palomares veterans’ claims with the secretive conduct the Supreme Court found so reprehensi ble 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. T he 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 mus t 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 ha ve tolled the appeal period for expired claimants. Case: 21-1757 Document: 84 Page: 20 Filed: 09/08/2022SKAAR v. MCDONOUGH 21

permit equitable tolling fo r past and expired claimants on this basis

. Class Certification , 32 Vet. App. at 187. And the Veterans Court unambiguously denied this request. Thecourt 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 equitabletolling context,” and reiterated that “the extraordinary circumstances element [of equitable tolling] necessarily requires a case

- by

- case analysis and not a categorical determinatio n.” Id. (alteration in original) (quoting James v. White , 917 F.3d 1368, 1373 (Fed. Cir. 2019)).
Moreover, the Veterans Court observed t hat Mr. Skaar had never alleged that past and expired claimants “were precluded from timely filing appeals .

. . for an y 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 th at 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 f rom “ any other claimants whohave 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. Th us, th e Veterans Court’s analysis does not evince a ny 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 andexpired 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: 09/08/2022SKAAR v. MCDONOUGH 22

the court must have jurisdiction over the claims of every member of a class the court certifies. By certifying a class that includes vete rans 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 vacat e the class certification, we also limit the application of the merits decision to Mr. Skaar’s claim.

VACATED AND REMANDED

C OSTS

No costs. Case: 21-1757 Document: 84 Page: 22 Filed: 09/08/2022