Skaar: Only claimants who have appealed a Board decision or are still able to can be part of a proposed class

Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022)

HELD: In order to participate as a member of a class action at the CAVC, the proposed class member must have either appealed a Board decision or must be able to appeal a Board decision.

Summary: A group of veterans who were exposed to radiation at Palomares challenged the evidence used for dose estimates. The CAVC certified a class that was comprised of (1) present claimants (those who had appealed or could still appeal a Board denial); (2) present-future claimants (those who had a claim still pending before the RO or Board); and (3) future-future claimants (those who had not yet filed a claim with the RO). The Secretary appealed to the Federal Circuit, which held that only claimants who have timely appealed a Board decision to the Court or who were still able to appeal can be part of the proposed class. The CAVC’s jurisdiction is defined by 38 U.S.C. § 7252 only. There is no supplemental jurisdiction and class certification doesn’t create jurisdiction.