On Class-Action Remedies, Begin with the End in Mind
Think about the last class-action notice that you received. You might have thought, “This is sweet. I didn’t know anything was wrong with my dog food, but I can get $50 if I just fill out this form.”
There is a reason that we receive these mailings without having made a claim or knowing that anything is wrong: federal district courts routinely certify classes that include future claimants.
In a recent decision, however, a federal appellate court concluded that, in the notable circumstances of that case, the law barred certification of a class of future claimants.
What circumstances prompted that conclusion? This post studies that decision, called Skaar v McDonough. The case turns on jurisdictional issues. It also provides an interesting history lesson.
The Palomares Incident
We start with the history lesson.
In 1966, an Air Force B-52 bomber carrying thermonuclear weapons collided mid-air with another aircraft. Two of the weapons fell to the ground near a town in Spain named Palomares. The crash released radioactive dust and debris.
Air Force veteran Victor Skaar participated in the Palomares cleanup operation. Thirty years after his participation, Mr. Skaar was diagnosed with low white-blood-cell count, known as leukopenia.
After he filed an unsuccessful claim for benefits, Mr. Skaar appealed to the U.S. Court of Appeals for Veterans Claims. He argued that the radiation-dose estimates that the Air Force had calculated to evaluate his claim were unsound.
Mr. Skaar also made a procedural argument. He asked the Veterans Court to certify multiple classes of similarly situated veterans who participated in the Palomares cleanup.
The Veterans Court granted that procedural motion in large part. In doing so, the Veterans Court certified classes that included veterans who had not yet made claims. The Veterans Court reasoned that because it had jurisdiction over Mr. Skaar’s claim, it could aggregate his claim with other claims, including future claims.
To Determine the Future, Look to the Past
The Secretary of Veterans Affairs appealed to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit reviews decisions of the Veterans Court.
In that appeal, the Federal Circuit scrutinized the Veterans Court’s jurisdictional analysis.
Circuit Judge Todd Hughes, writing for the panel, explained that the jurisdictional scope of the Veterans Court is a matter of statute. The Veterans Court is an Article I tribunal, and its authority comes solely from Congress. Congress limited that authority to “review decisions of the Board of Veterans’ Appeals.” The Board of Veterans’ Appeals is the tribunal that initially denied Mr. Skaar’s claim.
Judge Hughes noted the significance of the word “decisions” in the Veterans Court’s statutory grant of jurisdiction. This word, he explained, means that the Veterans Court can only adjudicate claims of veterans who have received actual decisions by the Board of Veterans’ Appeals.
To bolster this conclusion, Judge Hughes pointed to another sentence in the jurisdictional statute. That sentence says that the Veterans Court “shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.” This sentence, he explained, confirms that Congress intended that the Veterans Court may only take specific actions on pre-existing rulings by the Board.
Based on this reasoning, the Federal Circuit held that the Veterans Court erred by aggregating claims of veterans who had not received Board decisions. These veterans included future claimants.
Different Statutes, Different Jurisdiction
Let’s return to the class notice about the dog food. How is it that you received that notice and can get your $50 windfall, but veterans who suffer from leukopenia cannot have their claims aggregated with Mr. Skaar’s claim?
The answer lies with Congress. Congress limited the jurisdiction of the Veterans Court to aggregate claims, but it did not impose similar limitations on Article III courts. As Judge Hughes explained, Congress conferred federal district courts with supplemental jurisdiction that encompasses future claims. Judge Hughes also quoted the U.S. Supreme Court’s teaching that the supplemental-jurisdiction statute includes members of classes certified under Civil Rule 23, as long as the federal district court has original jurisdiction over one class member’s claim.
The Takeaway: What Can the Court Actually Decide?
Skaar is an interesting case. It combines history and civil procedure, and its outcome has real effects for veterans. The Supreme Court recently denied certiorari, so the Federal Circuit’s word is final.
But Skaar also has a practical lesson for all litigators. Whether you are constructing a complaint or defending against one, a threshold analytical issue is determining (a) the particular remedies—whether substantive or procedural—that your court is authorized to dole out, and (b) the source of that authority. The answers might require some digging, including into jurisdictional materials, but your excavation project could be key to winning or losing.