Supreme Court Blocks Veterans' Rights to Class Action Claim After Radiation Exposure

The Supreme Court has denied an appeal made by a Veteran who asked to represent a group of service members who suffered cancers and deaths after exposure to radiation during the 1966 Palomares Hydrogen Bomb Accident. In doing the high court has again closed the door for many other veteran claims. The justices offer no comment on their ruling to uphold a previous decision by a federal appeals court, dealing a blow to the Veterans’ quest for recognition and assistance.

The Palomares Hydrogen Bomb Accident

On January 17, 1966, a U.S. B-52 bomber and a refueling plane collided above the village of Palomares in southern Spain. The collision resulted in the release of four U.S. hydrogen bombs. Although none of the nuclear explosions went off, two of them had plutonium-filled detonators that exploded, scattering approximately 7 pounds of highly radioactive plutonium 239 across the surrounding area. This event has been labeled as the most severe radiation accident in U.S. history (https://www.france24.com/en/tv-shows/revisited/20230825-when-four-nuclear-bombs-fell-onto-spanish-village-of-palomares).

The Veterans’ Struggle for Recognition

Victor Skaar, now 80 years old, asked the VA to recognize that his condition, and that of more than 1300 others who were assigned to the recovery and cleanup efforts following the Palomares incident, were related to exposure in the radiation fields near Palomares. The VA has consistently (and incorrectly) claimed that the exposure to radiation - with minimal if any protective equipment – was on the average too low to cause illness. Skaar himself suffers from leukopenia, a condition potentially linked to radiation exposure, and has previously battled skin cancer. Based on the faulty “averaging” of exposures, the VA has held fast to its denial of benefits for every veteran claiming exposure from that accident cleanup, and demanded that each of them separately provide proof that the exposure to plutonium they were sent into caused their diseases. Adding a crushing blow to many veteran claims, the Federal Court of Appeals first granted, then took away the veterans’ right to be recognized as a class that could be recognized collectively and work together to prove in a single case the deadly exposure they suffered. The Supreme Court’s decision in June 2023 has upheld that ruling (https://www.pbs.org/newshour/amp/nation/supreme-court-rejects-appeal-from-veterans-seeking-disability-benefits-after-radiation-exposure).

The VA Opposed Any Review

The Justice Department opposed the review of the case by the Supreme Court, pointing out that Congress had recently allowed a new window for Palomares Veterans’ claims under the PACT Act (https://www.va.gov/resources/the-pact-act-and-your-va-benefits/). However, it was acknowledged that Victor Skaar and his specific circumstances were not covered under the new legislation. This setback has left the Veterans and their legal team disappointed and frustrated, as they believe their sacrifice and the subsequent health issues resulting from the radiation exposure should warrant recognition and support.

The Long-Term Impact on All Veterans

At least 1,388 servicemen participated in cleaning up the radioactive mess at Palomares. These individuals faced daily exposure to dangerous levels of radiation for weeks or even months, leading to the development of various cancers, blood disorders, heart and lung problems, and other illnesses. Despite enduring these health issues directly related to their service, the Veterans have been met with delay and denial, and essentially without recognition or assistance from the government. The denial of Class status here is a sharp turn away from what was a hopeful trend away from arbitrary denials of promised benefits. As the dissenting judges said at the Court of Appeals: For many years the system for processing veterans' claims has been inefficient and subject to substantial delays – to the disadvantage of our nation's veterans. The Department of Veterans’ Affairs (“VA”) currently has over 685,000 pending disability compensation and pension claims. The Committee Report to the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 noted that, at the time of its publication, there were approximately 470,000 pending appeals to the Board (https://www.govinfo.gov/app/details/PLAW-115publ55). The VA projected that, without changes, by 2027 the wait for claimants to receive a final appeals decision would be ten years.

The Supreme Court’s decision not only rejected the appeal of these Veterans seeking disability benefits and care, but may have ended the possibility for other Veterans to use the class-action method to prove toxic exposures. The decision that was upheld limits these actions only to a tiny class of people who have gone through that ten-year period in the Veteran’s Court, and received a final rejection, but who have not yet filed their federal appeal. This is absurd, as it simply supports the VA’s approach of “delay, delay and then delay,” until Veterans give up or die. Veteran’s groups and even the federal judges who filed a dissenting opinion are offended by the lack of recognition and support from the government that undermines the sacrifices made by these Veterans.