throbber
Case: 21-1757 Document: 84 Page: 1 Filed: 09/08/2022
`
`
`
`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. Al-
`len.
`
`______________________
`
`Decided: September 8, 2022
`______________________
`
`CAROLINE MARKOWITZ, Veterans Legal Services Clinic,
`Jerome N. Frank Legal Services Organization, Yale Law
`School, New Haven, CT, argued for claimant-cross-appel-
`lant. Also represented by MEGHAN BROOKS, MATTHEW
`HANDLEY, ADAM HENDERSON, JOSHUA HERMAN, MICHAEL
`JOEL WISHNIE. Also argued by ANTHONY PICCIRILLO, Simp-
`son Thacher & Bartlett LLP, New York, NY. Also repre-
`sented by LYNN K. NEUNER.
`
` SOSUN BAE, Commercial Litigation Branch, Civil
`
`

`

`Case: 21-1757 Document: 84 Page: 2 Filed: 09/08/2022
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`2
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`SKAAR v. MCDONOUGH
`
`Division, United States Department of Justice, Washing-
`ton, DC, argued for respondent-appellant. Also repre-
`sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
`PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, JONATHAN
`KRISCH, Office of General Counsel, United States Depart-
`ment of Veterans Affairs, Washington, DC.
`
` JONATHAN D. SELBIN, Lieff, Cabraser, Heimann &
`Bernstein, LLP, New York, NY, for amici curiae Maureen
`S. Carroll, Zachary Clopton, Brooke D. Coleman, Robin Ef-
`fron, Maria Glover, Andrew Hammond, Deborah R. Hens-
`ler, Helen Hershkoff, Alexandra D. Lahav, Elizabeth G.
`Porter, Alexander Reinert, Judith Resnik, Michael D.
`Sant'Ambrogio, Joan E. Steinman, Adam S. Zimmerman.
`Also represented by YAMAN SALAHI, Edelson PC, San Fran-
`cisco, CA.
`
` DORIS JOHNSON HINES, Finnegan, Henderson,
`Farabow, Garrett & Dunner, LLP, Washington, DC, for
`amicus curiae National Veterans Legal Services Program.
` ______________________
`
`Before MOORE, Chief Judge, NEWMAN and HUGHES,
`Circuit Judges.
`HUGHES, 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-connected
`benefits, and the 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 in
`denying his claim. By motion for class certification,
`Mr. Skaar sought to make this challenge on behalf of all
`
`

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`SKAAR v. MCDONOUGH
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`3
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`similarly situated veterans who had participated in the
`Palomares cleanup operation. The Veterans Court certified
`a class, with Mr. Skaar serving as its representative, that
`includes veterans who had not received a Board decision
`and that excludes veterans whose claims had been denied
`but not timely appealed. See Skaar v. Wilkie, 32 Vet. App.
`156, 201 (2019) (Class Certification). The Secretary of Vet-
`erans Affairs appeals, and Mr. Skaar cross-appeals, the
`Veterans Court’s class definition.
`On appeal, the Secretary asserts that the Veterans
`Court lacked authority to certify a class that includes vet-
`erans who had not received a Board decision—a statutory
`prerequisite for the court’s jurisdiction pursuant to
`38 U.S.C. § 7252(a)—because jurisdiction over Mr. Skaar’s
`individual claim did not create further jurisdiction over a
`class of similarly situated veterans whose individual
`claims were beyond the court’s jurisdiction. We agree. By
`certifying a class that includes veterans who had not re-
`ceived a Board decision, the Veterans Court exceeded its
`jurisdiction. We accordingly vacate the court’s class certifi-
`cation 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 ap-
`pealed 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 appealed their denied
`claims since none of the claimants had alleged, let alone
`established, the requisite due diligence in pursuing their
`rights. See Toomer v. McDonald, 783 F.3d 1229, 1237–38
`(Fed. Cir. 2015). Thus, should the Veterans Court choose to
`reconsider on remand whether class certification is appro-
`priate, 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.
`
`

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`SKAAR v. MCDONOUGH
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`I
`A
`In January 1966, a United States Air Force B-52
`bomber carrying four thermonuclear weapons collided mid-
`air with another aircraft. Two of the weapons crashed into
`the ground near Palomares, Spain, and released “radioac-
`tive plutonium dust over the area, contaminating soil and
`crops, and spreading radioactive debris for miles.” Class
`Certification, 32 Vet. App. at 168. “Mr. Skaar, along with
`nearly 1,400 other U.S. military personnel,” assisted in the
`cleanup. Id. They also provided urine and nasal swab sam-
`ples 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 accident. Id.
`Monitoring efforts for Mr. Skaar continued until De-
`cember 1967, when the Air Force concluded that his health
`was not in “jeopardy from retention of radioactive materi-
`als 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 leukopenia, a blood disorder characterized by a de-
`crease in white blood cell count. His doctor opined that ex-
`posure 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-connected 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 opin-
`ion. The Air Force—the service branch responsible for
`providing the agency with exposure data and dose esti-
`mates
`for Palomares
`veterans—estimated
`“that
`Mr. Skaar’s maximum total effective dose during the Palo-
`mares cleanup was 4.2 rem with a bone marrow committed
`
`

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`SKAAR v. MCDONOUGH
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`dose of 1.18 rem, compared to annual dose limits of 5 and
`50 rem, respectively, for occupations typically involving ra-
`diation exposure.” Id. at 169. Relying on these estimates,
`the Under Secretary for Benefits found it unlikely 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, the regional office denied
`Mr. Skaar’s claim, and he appealed the 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 (altera-
`tion 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 methodol-
`ogy, which was underestimating doses for some individuals
`including Palomares veterans. Consequently, “the Air
`Force intended to ‘formally standardize [its] response
`methodology for radiation dose inquiries involving Palo-
`mares participants’ by establishing dose estimates based
`on each veteran’s specific duties.” Id. (alteration in origi-
`nal) (citation omitted).
`After reevaluating its dose estimate methodology, the
`Air Force provided the agency with revised dose estimates
`for Mr. Skaar, “assigning him a new maximum total effec-
`tive dose of 17.9 rem and a bone marrow committed dose of
`14.2 rem.” Id. The Board found that these revised dose es-
`timates amounted to new and material evidence warrant-
`ing another dose estimate opinion and remanded the claim.
`The regional office obtained and considered a new dose es-
`timate opinion from August 2016. Nonetheless, the re-
`gional office again 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.
`
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`SKAAR v. MCDONOUGH
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`“[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 de-
`cision denying his 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 estimates, 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 vet-
`erans who were present during the Palomares cleanup. Id.
`at 170. The Veterans Court granted in part Mr. Skaar’s
`motion and certified a class to litigate the § 3.311 chal-
`lenge.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 Court deter-
`mined that it “possess[es] the power to aggregate claims
`and certify class actions in the appeal context.” Class Cer-
`tification, 32 Vet. App. at 178. The court further acknowl-
`edged that class composition 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 challenge. Class Certification,
`32 Vet. App. at 172. He has not appealed this holding.
`
`

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`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 ‘trig-
`ger’ 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 compris-
`ing all veterans who were present at the 1966 Palomares
`cleanup that
`(1) had filed 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 ap-
`peal, the Board’s denial of a radiation exposure
`claim to the Veterans Court (present claimants);
`(4) had filed 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 claimants).
`Id. at 179–180. The court determined that it has jurisdic-
`tion over present claimants “because they possess final
`Board decisions and either their 120-day windows to ap-
`peal 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
`
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`SKAAR v. MCDONOUGH
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`unique jurisdictional issue” since none of them have re-
`ceived final Board decisions. Id. Still, the court concluded
`that its “jurisdictional statute does not prohibit the[] inclu-
`sion” of such claimants as class members. Id. Instead, the
`Veterans Court held that, “pursuant to [its] statutory au-
`thority under 38 U.S.C. §§ 7252 and 7261,” it has “the au-
`thority 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 representa-
`tive, ha[d] obtained a final Board decision pursuant to
`[§] 7252,” and his “satisfaction of [this] jurisdictional re-
`quirement” vested the court with jurisdiction over other
`class members, “much in the same 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. at 181–82. Moreover, the court ex-
`plained, Mr. Skaar’s Board decision had opened a “jurisdic-
`tional 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 mem-
`bers.” Id. at 181.
`Then, turning to Bowen v. City of New York, 476 U.S.
`467 (1986) for support, the Veterans Court 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) the
`challenged conduct is collateral to the class representa-
`tive’s administratively exhausted claim for benefits—i.e.,
`the class representative has obtained a final Board deci-
`sion; (ii) enforcing the exhaustion requirement would ir-
`reparably harm the class; and (iii) the purposes of
`exhaustion would not be served by its enforcement.” Id. at
`184–85. The court applied this standard here, and deter-
`mined that it had jurisdiction over present-future and fu-
`ture-future claimants “and [need] not require exhaustion
`of administrative remedies by each and every class mem-
`ber.” Id. at 185. The Veterans Court accordingly included
`
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`present-future and future-future claimants, along with
`present claimants, in the class. Id. at 186.
`Next considering past and expired claimants, the court
`declined to equitably toll the appeal period for claimants
`who failed to timely appeal their denied claims and ex-
`cluded both subgroups from the proposed class on that ba-
`sis. Id. at 189. These claimants, the court observed, “could
`have challenged [the agency’s] treatment of Palomares vet-
`erans just like Mr. Skaar, yet each chose not to.” 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 the class to pre-
`sent, 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 ap-
`peal context,” and considered whether the class met the
`requisites for class certification pursuant to Rule 23. Id. at
`189. Finding that it did, the court certified the class, ex-
`cluding 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-connected
`disability compensation based on exposure to ion-
`izing 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, ex-
`cept those whose claims have been denied and rel-
`evant appeal windows of those denials have
`expired . . . .
`Id. at 189.
`
`

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`SKAAR v. MCDONOUGH
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`A year after certifying the class, the Veterans Court is-
`sued a decision on the merits of Mr. Skaar’s § 3.311 chal-
`lenge 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 concluding 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 re-
`manded the matter for the Board to readjudicate
`Mr. Skaar’s § 3.311 challenge, further stating that “[t]his
`portion of [its] decision applies to the class certified in this
`matter.” Id. at 143–44, 149. Following its merits decision,
`the 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 Stamp Order, for the Panel,
`Denying Appellant’s Opposed Motion for Immediate Issu-
`ance 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
`Court is governed by 38 U.S.C. § 7292. Unlike other statu-
`tory provisions that govern our jurisdiction, § 7292 does not
`expressly premise appellate review on the finality of the
`Veterans Court’s decision. Compare 28 U.S.C. § 1295(a)(1)
`(conferring jurisdiction over “an appeal from a final deci-
`sion 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 . . . .”).
`Nevertheless, 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
`
`

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`SKAAR v. MCDONOUGH
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`“remand orders from the Veterans Court ordinarily are not
`appealable because they are not final.” Adams v. Principi,
`256 F.3d 1318, 1320 (Fed. Cir. 2001). We will, however, de-
`part from this strict rule of finality when the Veterans
`Court remands a matter for further proceedings if the fol-
`lowing conditions are satisfied:
`(1) there must have been a clear and final decision
`of a legal issue that (a) is separate from the remand
`proceedings, (b) will directly 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 deci-
`sion would not survive a remand, i.e., that the re-
`mand proceeding may moot the issue.
`Williams, 275 F.3d at 1364 (footnotes omitted). The class
`certification satisfies these criteria.
`First, the Veterans Court issued a clear and final deci-
`sion regarding its jurisdiction to certify a class that in-
`cludes veterans who had not received a Board decision. See
`Travelstead 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 proceeding,” and was appealable). That
`decision addressed a legal issue involving the Veterans
`Court’s jurisdictional statute that is separate from the re-
`mand 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 . . . . Begin-
`ning with the class claim concerning radiation dose esti-
`mates, we hold that the Board failed to meet its obligation
`
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`SKAAR v. MCDONOUGH
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`under 38 C.F.R. § 3.311(c) to ensure that dose 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 jurisdic-
`tional issue will adversely affect the Secretary by requiring
`the Secretary to expend time and resources addressing in-
`dividuals 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 jurisdic-
`tional issue not only affects the Secretary but also affects
`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 dissenting in part) (“I
`am compelled to comment that the result here demon-
`strates 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 bases for its decision
`and to remand the matter for readjudication—the same re-
`lief 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 ap-
`pellate context and the bounds of the Court’s jurisdiction,
`without bringing [Mr. Skaar] any closer to receiving a de-
`cision that adequately addresses the merits of whether the
`dose estimates relied on by [the agency] are based on a
`methodology that complies with 38 C.F.R. § 3.311(c).” (ci-
`tations omitted)); see also Class Certification, 32 Vet. App.
`
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`See 38 U.S.C. § 5101(a)(1)(A); Travelstead, 978 F.2d at
`1248.
`Third, there is a substantial risk that the remand pro-
`ceeding may deprive the Secretary of an opportunity to
`later contest the Veterans Court’s jurisdiction over the cer-
`tified class since the Secretary is statutorily precluded from
`appealing to the Veterans Court any Board decision, in-
`cluding 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 dissenting in part) (“[T]he Board’s
`inadequate statement of reasons or bases frustrates judi-
`cial review, precluding [the Veterans Court’s] ability to pro-
`vide the requested class-wide relief and compelling [the
`court] to remand the matter for full readjudication 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 the representative.”). Thus, we may exercise jurisdic-
`tion over the court’s class certification decision. See Dam-
`bach 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 major-
`ity has created a class that exceeds our jurisdiction and of-
`fers a comparable outcome to members of that class that a
`precedential decision could provide without the managea-
`bility and preclusion problems inherent in class litiga-
`tion.”); id. at 221 (“If we had an adequate record, a panel
`might have, months ago, found that the dose methodology
`[the agency] used in Mr. Skaar’s case was flawed and coun-
`ter to 38 C.F.R. § 3.311. Its decision, a nationwide prece-
`dent, would have fixed any such systemic dose estimate
`problem and [the agency] would have been required to ap-
`ply the Court’s holding consistently to all veterans’ cases.”).
`
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`SKAAR v. MCDONOUGH
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`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 challenge
`to the validity of any statute or regulation or any interpre-
`tation thereof . . . and . . . interpret constitutional and stat-
`utory 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 in-
`terpretation, 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 equi-
`table 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 pre-
`sent, present-future, and future-future claimants but ex-
`cludes past and expired claimants. The primary question
`before us, on appeal and cross-appeal, is which 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, while
`Mr. Skaar would define the class broadly to include past,
`expired, present, present-future, and future-future claim-
`ants. We agree with the Secretary. The certified class
`should have included only present claimants because the
`Veterans Court did not have jurisdiction over past, pre-
`sent-future, or future-future claimants, and because the
`expired claimants cannot benefit from equitable tolling to
`revive claims that they could have timely appealed follow-
`ing the Board’s denial.
`
`

`

`Case: 21-1757 Document: 84 Page: 15 Filed: 09/08/2022
`
`SKAAR v. MCDONOUGH
`
`15
`
`A
`The Veterans Court exceeded its 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 Court correctly acknowledged that “a
`final Board decision operates as the jurisdictional ‘trigger’
`that gives [it] the authority to hear a particular appeal,”
`the court held “that because Mr. Skaar, as class repre-
`sentative, 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 ex-
`plained 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. Salfi,
`422 U.S. 749, 753 (1975) (“[W]hile [the court] had jurisdic-
`tion of the claims of the named appellees under the provi-
`sions 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 jurisdiction
`over the claims of unnamed class members on its jurisdic-
`tion 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 jurisdic-
`tion. Indeed, a court cannot write its own jurisdictional
`ticket.” (cleaned up)). Class certification is merely a proce-
`dural tool that allows the court to aggregate claims, see
`Wick, 40 F.3d at 1370 (explaining that neither the Veterans
`Court’s scope of review nor its rules of practice and proce-
`dure “provide an independent basis for jurisdiction”); it
`does not itself confer on the court jurisdiction to review in-
`dividual claims it would otherwise lack, Chula Vista City
`School District v. Bennett, 824 F.2d 1573, 1579 (Fed. Cir.
`1987) (“The claim of each member of the class must be ex-
`amined separately to determine whether it meets the juris-
`dictional requirement.”). Nor does our decision in Monk, in
`which we held only that the “Veterans Court has the
`
`

`

`Case: 21-1757 Document: 84 Page: 16 Filed: 09/08/2022
`
`16
`
`SKAAR v. MCDONOUGH
`
`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 circum-
`stances in which a class certification would be appropriate).
`Monk does not provide a cognizable basis for circumnavi-
`gating the limits of the Veterans Court’s statutory jurisdic-
`tion. Cf. Mahaffey v. Sec’y of Health & Hum. Servs.,
`368 F.3d 1378, 1381 (Fed. Cir. 2004) (explaining that nei-
`ther 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 the Vet-
`erans Court cannot invoke its authority to certify a class
`action in the appeal context unless the court has “jurisdic-
`tion 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 adjudica-
`tion emphasized by the Secretary, at least so long as the
`membership of the class is limited to those who meet the re-
`quirements of [the judicial review statute]. Where the dis-
`trict 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)).
`Here, the Veterans Court has “only one source of juris-
`diction: 38 U.S.C. § 7252(a).” Class Certification,
`32 Vet. App. at 180 (citing Henderson v. Shinseki, 562 U.S.
`428, 434 (2011)); see Burris, 888 F.3d at 1357 (“The Veter-
`ans Court, as an Article I tribunal, is a creature of statute
`by definition. As such, the court can only act through an
`express grant of authority from Congress.” (citations omit-
`ted)). 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). Thus, the Veterans
`Court’s jurisdiction is “premised on and defined by the
`
`

`

`Case: 21-1757 Document: 84 Page: 17 Filed: 09/08/2022
`
`SKAAR 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 re-
`spect to the benefit sought by the veteran,” Maggitt v. West,
`202 F.3d 1370, 1376 (Fed. Cir. 2000) (emphasis added).
`This means that “a veteran must first present a request for
`a benefit to the Board, then receive a decision on that re-
`quest, in order to vest jurisdiction in the Veterans Court to
`consider the veteran’s request and arguments in support
`thereof.” Id. By definition, therefore, a class must be lim-
`ited to veterans who satisfy t

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