Skaar v. McDonough

On January 17, 1966, two U.S. Air Force planes collided over Palomares, Spain. The collision dislodged four hydrogen bombs, which fell to the earth and released clouds of radioactive dust over the Spanish countryside. The Air Force sent approximately 1,600 airmen to Palomares to clean up the accident’s aftermath. The radiation at Palomares poisoned many of the airmen, and caused them to suffer a broad range of health defects in the ensuing decades.

The Veterans Legal Services Clinic (VLSC) represents retired Air Force Chief Master Sergeant Victor Skaar who appealed the Board of Veterans’ Appeals 2017 denial of his disability benefits claim to the Court of Appeals for Veterans Claims (CAVC), requesting classwide relief.

In a groundbreaking 6-3 decision issued on December 6, 2019, the CAVC sitting en banc certified a class of elderly disabled veterans exposed to ionizing radiation while cleaning up the 1966 nuclear bomb disaster in Palomares, Spain, whose claims had recently been denied or will be denied using the radiation dose estimate methodology that Mr. Skaar challenges. The CAVC’s decision held that the group of Palomares veterans satisfied the requirements for class certification used in other federal courts, announcing that the "decision today heralds the beginning of an era in which we will entertain, but by no means always certify, class actions in the first instance, making us the only Federal appellate court in the Nation to do so." This class action is the first ever certified in the history of the CAVC from a direct appeal from the VA benefits system.

On December 17, 2020, the CAVC issued a decision on the merits of the case, finding that VA had not fulfilled its legal responsibility to determine whether the method it uses to assess Palomares veterans’ radiation exposure is scientifically sound. The CAVC remanded the case on a class basis, ordering the Board of Veterans’ Appeals to review the parties’ evidence and provide considered analysis of the methodology to ensure that only sound scientific evidence be used to determine veterans’ eligibility for disability benefits.

VA appealed to the U.S. Court of Appeals for the Federal Circuit, which vacated the class certification order because the panel concluded that the Veterans Court lacked jurisdiction to include veterans with pending or future claims in the class. Skaar v. McDonough, 48 F.4th 1348 (Fed. Cir. 2022). On petition for rehearing en banc, the Federal Circuit divided 7-5, with the dissenting judges concluding that “there are substantial flaws in the panel’s analysis, which is at odds with Supreme Court decisions.” Skaar v. McDonough, 57 F.4th 1015, 1017 (Fed. Cir. 2023) (Dyk, J., dissenting from denial of petition for rehearing en banc). The Supreme Court denied certiorari. ___ S.Ct. ___, 2023 WL 4065623 (U.S. June 20, 2023).

Resources for Palomares Veterans Pursuing Benefits Claims and Appeals

VLSC, as counsel for the class in Skaar, drafted a letter and collected documents for veterans who served at Palomares, Spain in 1966 to submit to the VA (either Regional Office or the Board of Veterans' Appeals) in support of any service-connected disability claims for radiation-related conditions. The packet includes relevant selections from the evidence filed as part of the class action lawsuit. This evidence establishes that the VA's current methodology for deciding Palomares veterans' claims for service connection for radiation-related conditions is flawed.

This letter with attachments is not legal advice. VLSC does not represent class members in their individual claims and expresses no opinion as to the merits of a person’s individual claim or as to a person’s membership in the class.

Letter and Evidence for Palomares Veterans’ Benefits Claims and Appeals

Selected Case Documents

Federal Circuit order denying petition for rehearing en banc, with dissenting opinion (Jan. 17, 2023)

Federal Circuit panel decision vacating class certification (Sept. 8, 2022)

Merits Decision in Related Palomares Veteran’s Case, September 21, 2022

Merits Decision, December 17, 2020

Proposed Plan for Notice, January 30, 2020

Order Granting Class Action, December 6, 2019

Order for Expedited Limited Remand, February 1, 2019.

Order to Produce Numbers on Palomares Participants and VA Claimants, November 13, 2018.

Appellant’s Reply to the VA’s Response to May 21 Order on Class Questions, August 3, 2018.

Appellant’s Response to May 21 Order on Class Questions, June 20, 2018.

Order for Supplemental Briefing on Class Questions, May 21, 2018.

Brief of Amicus Curiae Friends of the Earth in Support of Appellant, April 13, 2018.

Appellant’s Motion for Class Certification, December 11, 2017.

Selected Media Clips

Richard Currey, The Palomares Nuclear Disaster and a Class-Action Victory, The VVA Veteran, March/April 2020.

Chloe Shantz-Hilkes and John McGill, U.S. Veteran Sues Military Half-Century After Classified Cold War Disaster, CBC Radio, February 14, 2020.

Dave Philipps, Legal Win Is Too Late for Many Who Got Cancer After Nuclear Clean-Up, New York Times, February 11, 2020.

Court Orders Disclosure of Information About Veterans Exposed to Radiation, Yale Law School News, November 14, 2018.

Rance Burger and Sydni Moore, Federal court hears case of Nixa veteran who worked “Broken Arrow” cleanup in 1966, Christian County Headliner News, October 17, 2018.

Leo Shane III, Lawmaker presses for quicker action to help military clean-up crews of 1966 nuclear accident, Military Times, August 29, 2018.

Joan Faus, Half a century after Palomares nuclear accident, a glimpse of justice, El País, January 3, 2018 (versión en español aquí).

Julia Bergman, Air Force vet who was part of 1966 nuclear cleanup seeks class action lawsuit, The Day, December 11, 2017.