Veterans Groups Urge Supreme Court to Preserve Class Actions
National veterans’ organizations and law professors filed amicus briefs on March 30 urging the U.S. Supreme Court to take up a case to preserve the possibility of collective action by groups of veterans in the U.S. Court of Appeals for Veterans Claims.
In Skaar v. McDonough, seven of 12 Federal Circuit judges voted to leave in place a panel decision that severely limits veterans’ ability to bring class actions, undermining the fair and efficient administration of justice for veterans in an overburdened benefits system, according to the Veterans Legal Services Clinic, which represents CMSgt. (Ret.) Victor Skaar and the putative class alongside co-counsel from Simpson Thacher & Bartlett LLP. The case concerns a group of airmen who deployed to Palomares, Spain in 1966, after a B-52 bomber collided with another plane, releasing four thermonuclear bombs over the Spanish countryside. Over a thousand troops took part in the operation and were exposed to radioactive material.
The clinic, part of the Jerome N. Frank Legal Services Organization at Yale Law School, filed a petition with the Supreme Court for a writ of certiorari in February.
The decision creates yet another barrier to relief for the Palomares veterans, according to those involved.
“We did our job. We did precisely what we were required to do, from the General on down,” said class representative CMSgt. (Ret.) Victor Skaar. “We’ve been neglected for almost 30 years. This case is about doing something for veterans who couldn’t do it themselves, or who didn't think they had a chance. My comrades deserve to be recognized and treated!”
The high stakes of the Federal Circuit decision drew the attention of many organizations.
“Allowing legal actions in the form of a class gives veterans a much-needed tool in challenging VA procedures,” John Muckelbauer, Veterans of Foreign Wars (VFW) General Counsel, said. “The decision being challenged in this appeal threatens to eliminate that tool, and we hope the Supreme Court takes this opportunity to step in and correct this.”
Palomares veterans, along with other veterans exposed to toxins in service, received some relief with the passage of new presumptions of service connection for certain conditions in the PACT Act last summer. But the veterans represented in Skaar v. McDonough are exempted from the PACT Act’s coverage.
“The nation’s highest court should strike down the VA’s arbitrary, unconscionable obstacles to brave veterans like Victor Skaar receiving benefits and care for cancer and other horrific diseases caused by their Palomares service,” said Sen. Richard Blumenthal ’73. “The Palomares incident was one of the largest nuclear weapon accidents in history — and 1,600 brave service members responded selflessly to the cleanup unaware of the long-term health implications of the radiation exposure. The VA must be held accountable for continuing to deny them the benefits and critical care they so rightly deserve. The Veterans Legal Services Clinic at Yale Law School is a powerful partner in this fight to bring justice for veterans and I am extremely grateful for their work and commitment to this pressing issue.”
Mila Reed-Guevara ’23, a student in Yale’s Veterans Legal Services Clinic, explained the importance of the case.
“Our client seeks review of a decision which would require that every single veteran has a decision from the Board of Veterans’ Appeals (BVA) before being included in a class action,” she said. “This makes class certification practically impossible, requiring every individual veteran to fight through the VA’s long backlog to receive relief.”
The following organizations filed amicus briefs in support of Skaar’s petition for a writ of certiorari: Iraq and Afghanistan Veterans of America, Paralyzed Veterans of America, Veterans of Foreign Wars, Vietnam Veterans of America, National Organization of Veterans’ Advocates, National Veterans Legal Services Program, Civil Procedure and Administrative Law Scholars, and the National Law School Veterans Clinic Consortium.
Since 2017, over two dozen law student interns in the Veterans Legal Services Clinic have represented Palomares veteran clients.