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Monday, December 9, 2019
Court Certifies Class of Veterans Exposed to Radiation
In a groundbreaking 6-3 decision issued on December 6, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC), sitting en banc, certified a class of elderly disabled veterans exposed to ionizing radiation while cleaning up a nuclear bomb disaster in Palomares, Spain in 1966. The Veterans Legal Services Clinic at Yale Law School represents the plaintiff and the class in the case. This class action is the first ever certified in the history of the CAVC from a direct appeal from the VA benefits system.
The veterans in Skaar v. Wilkie (No. 17-2574) challenge VA policies on behalf of Palomares veterans denied disability benefits for radiation-related illnesses suffered as a result of their service in Palomares. The class, represented by lead appellant Victor Skaar, a retired Air Force Chief Master Sergeant, contends that the VA has unlawfully relied on flawed scientific methodology to deny Palomares veterans’ disability benefits claims for decades. The approximately 1,600 Palomares veterans deployed to Palomares after a U.S. Air Force bomber crashed following a midair collision, releasing four hydrogen bombs. Two bombs exploded conventionally, spreading plutonium radiation across the Spanish countryside.
CAVC’s decision found that the group of Palomares veterans satisfied the requirements for class certification used in other federal courts. “Our 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. . . . [O]ur Nation’s veterans deserve no less,” explained the Court in the majority opinion authored by Judge Michael Allen.
“For more than 50 years, the VA has denied Palomares veterans benefits for our service recovering, detecting, and removing 5,400 drums of radioactive contamination at Palomares,” said Skaar. “I am happy that the Court’s opinion means I can continue to fight for recognition alongside my fellow Palomares veterans, many of whom are too ill to fight on their own, and their widows. I have been fighting this battle since I was 45 years old and am hopeful that the Court’s decision will finally allow me, at the age of 83, to receive benefits for my numerous radiation-related illnesses, including cancer.”
John Rowan, President of Vietnam Veterans of America (VVA), said, “VVA has long fought for the VA to recognize and appropriately compensate toxic wounds. VVA is proud to stand with veterans of the 1966 Palomares nuclear disaster, and we are excited to see that the Court allowed Palomares veterans to fight together as a unit again to get the health care and benefits they earned as a result of their service.”
“Justice for Mr. Skaar and other veterans has taken far too long. It is sad to think that like so many workers involved in nuclear accidents, Mr. Skaar was expected to react immediately to help to protect others, but, our government was not ready to stand by him,” said the environmental group Friends of the Earth, which filed an amicus brief in the case. “This is the long and ugly history of the nuclear industry and nuclear military in the U.S. We celebrate this moment, but know that justice has yet to be done fully for Mr. Skaar and others whose service to their country led their lives to be damaged by radiation.”
Sen. Richard Blumenthal (D-CT), a member of the Senate Veterans’ Affairs and Armed Services Committees and the lead sponsor of the proposed Palomares Veterans Act of 2019 (S.1896), said, “The Palomares nuclear disaster — one of the largest in history — caused untold suffering and pain to the men and women in uniform sent to the clean-up. This ruling represents one more step forward in the fight to provide these veterans and their families the health care and benefits they deserve. I commend the diligent efforts of the Yale Veterans Legal Services Clinic in this litigation and will continue to advocate for passage of the Palomares Veterans Act, providing veterans with statutory presumption that their illnesses and diseases are caused by their exposure to radiation at Palomares.”
“The Court’s thoughtful and pragmatic opinion recognizes that, in appropriate cases, veterans should be allowed to proceed as a group, not forced to fight their cases one-by-one,” said Lily Halpern ’21, a law student intern with the Veterans Legal Services Clinic at the Law School, which represents Skaar and the class. “We are grateful that Victor Skaar and the other service members who rendered faithful service more than 50 years ago will finally have their day in court.”