Veteranclaims’s Blog

January 17, 2020

Skaar v. Wilkie, No. 17-2574; proposed class-action notice; plan for effecting that notice;

Filed under: Uncategorized — Tags: — veteranclaims @ 4:32 pm

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
VICTOR B. SKAAR, Appellant, )
v.
ROBERT L. WILKIE, )
Secretary of Veterans Affairs, Appellee. )

Vet. App. No. 17-2574


JOINT RESPONSE TO THE COURT’S DECEMBER 6, 2019, ORDER
On December 6, 2019, the Court ordered the parties to jointly submit a
proposed class notice and plan for effecting notice, within 30 days. Ct. Order at 36.
The parties have agreed on a proposed notice and a plan for effecting that notice, both of which are attached to this response.
WHEREFORE, the parties respond to the Court’s December 6, 2019, order,
and hereby furnish the Court with their proposed notice and plan for effectuating notice.
Respectfully submitted,
FOR APPELLANT:
Date: January 6, 2020 /s/ Michael J. Wishnie
LILY HALPERN
Law Student Intern*
TOMOAKI TAKAKI
Law Student Intern
RENÉE BURBANK
Supervising Attorney
MICHAEL J. WISHNIE
2
Supervising Attorney
Veterans Legal Services Clinic
Jerome N. Frank Legal
Services Organization
Yale Law School†
P.O. Box 209090
New Haven, CT 06520-9090
Tel: (203) 432-4800
michael.wishnie@ylsclinics.org
FOR APPELLEE:
WILLIAM A. HUDSON, JR.
Acting General Counsel
MARY ANN FLYNN
Chief Counsel
Date: January 6, 2020 /s/ Richard A. Daley
RICHARD A. DALEY
Deputy Chief Counsel
/s/ Mark D. Vichich
MARK D. VICHICH
Senior Appellate Attorney
Office of General Counsel (027H/I)
U.S. Dept. of Veterans Affairs
810 Vermont Avenue, N.W.
Washington, DC 20420
(202) 632-5985

  • Motion for law student appearance forthcoming.
    IN THE UNITED STATES COURT OF APPEALS
    FOR VETERANS CLAIMS
    VICTOR B. SKAAR, )
    Appellant, )
    )
    v. ) Vet. App. No. 17-2574
    )
    ROBERT L. WILKIE, )
    Secretary of Veterans Affairs, )
    Appellee. )
    TABLE OF CONTENTS FOR ATTACHMENTS
    Proposed Joint Notice ……………………………………………………………………….1
    Proposed Joint Plan for Effecting Notice …………………………………………….. 2
    Declaration of Meghan Brooks and Exhibit A ………………………………………..4
    Declaration of Gary Hicks …………………………………………………………………..8
    Declaration of Barbara Morton ………………………………………………………….. 9
    Notice of Class Certification for Veterans of
    1966 Nuclear Clean-Up at Palomares, Spain
    Victor B. Skaar v. Robert L. Wilkie, Secretary of Veterans Affairs
    United States Court of Appeals for Veterans Claims, No. 17-2574
    If you participated in U.S. military operations at Palomares, Spain, after the
    January 17, 1966, B-52 crash that released plutonium dust and have a potentially
    radiation-related disease, you may be part of a class action lawsuit.
  1. What is this lawsuit about?
    This case is about whether the Department of Veterans Affairs (VA) has failed to use
    sound scientific evidence to decide claims for service-connected disability compensation
    for medical conditions potentially caused by exposure to ionizing radiation at Palomares,
    Spain.
  2. Am I a part of the lawsuit?
    You may be a class member if you have a medical condition that may have been caused
    by exposure to ionizing radiation at Palomares, if you EITHER
    (1) filed a VA claim for disability compensation related to Palomares in which VA
    obtained a radiation dose estimate in 2001 or later, or appealed a denial of
    such a claim, and have not yet received a decision; OR
    (2) have not yet filed a VA compensation claim for your Palomares-related medical
    condition but will do so in the future.
  3. Am I required to do anything?
    You are not required to respond to this notice. Even if you are a member of the class, you
    must file a claim to receive compensation. If you file or have filed a claim, you should
    meet all applicable deadlines for submission of evidence and appeals.
  4. What happens next?
    The Court of Appeals for Veterans Claims approved this case as a class action on behalf
    of a group of veterans. Next, the Court will decide if VA acted unlawfully. If the Court
    decides that it has, VA will not be able to use its current dose estimate methodology to
    decide your claim for Palomares-related benefits. Any final judgment entered in this case
    will be binding on all members of the class.
  5. If I am a member of the class, do I have a lawyer?
    The Court has named Michael J. Wishnie of the Veterans Legal Services Clinic at Yale
    Law School as the lawyer for the class. If you already have a representative before VA,
    that person is still your representative on your individual claim. If you are in the class, Mr.
    Wishnie represents you too, for free, but only as to the legal challenge in this lawsuit. You
    may contact Mr. Wishnie and his team with questions, including to find out whether you
    are a member of the class, at (203) 432-4800.
    Attachments to Joint Response to December 6, 2019, Court Order 1
    JOINT PROPOSED PLAN FOR
    EFFECTING NOTICE OF CLASS CERTIFICATION
    Within 30 days of the Court’s issuing an order approving the class notice,
    the Secretary will:
  6. Publish the content of this notice on Vantage Point, the Official Blog of
    the United States Department of Veterans Affairs (VA)
  7. Distribute the notice through the Department’s “#VetResources”
    newsletter;
  8. Forward this notice to 160 Community Veterans Engagement Boards;
    and
  9. Publish a hyperlink to the notice on VA’s website, which will be
    accessible at: https://www.publichealth.va.gov/exposures/
    radiation/sources/palomares.asp.
    The Secretary will bear the costs associated with these four items.
    Within 30 days of the Court’s issuing an order approving the class notice,
    Appellants will:
  10. furnish the attached one-sixth-page advertisement to Vietnam Veterans
    of America (VVA), for publication in its March/April issue of its print
    magazine, The VVA Veteran, at no cost to the parties.
    These methods of effecting notice are described in greater detail in the
    attached declarations.
    FOR APPELLANT:
    Attachments to Joint Response to December 6, 2019, Court Order 2
    Date: January 6, 2020 /s/ Michael J. Wishnie
    LILY HALPERN
    Law Student Intern*
    TOMOAKI TAKAKI
    Law Student Intern
    RENÉE BURBANK
    Supervising Attorney
    MICHAEL J. WISHNIE
    Supervising Attorney
    Veterans Legal Services Clinic
    Jerome N. Frank Legal
    Services Organization
    Yale Law School†
    P.O. Box 209090
    New Haven, CT 06520-9090
    Tel: (203) 432-4800
    michael.wishnie@ylsclinics.org
    FOR APPELLEE:
    WILLIAM A. HUDSON, JR.
    Acting General Counsel
    MARY ANN FLYNN
    Chief Counsel
    /s/ Richard A. Daley
    RICHARD A. DALEY
    Deputy Chief Counsel
    /s/ Mark D. Vichich
    MARK D. VICHICH
    Senior Appellate Attorney
    Office of General Counsel (027H/I)
    U.S. Dept. of Veterans Affairs
    810 Vermont Avenue, N.W.
    Washington, DC 20420
    (202) 632-5985
  • Motion for law student appearance forthcoming.
    Attachments to Joint Response to December 6, 2019, Court Order 3
    Attachments to Joint Response to December 6, 2019, Court Order 4
    Attachments to Joint Response to December 6, 2019, Court Order 5
    Exhibit A
    Attachments to Joint Response to December 6, 2019, Court Order 6
    Proposed 1/6 Page Advertisement 2¼ x 45/8
    PALOMARES VETERANS
    r
    The U.S. Court of Appeals
    for Veterans Claims has certified r
    a class of veterans with r
    medical conditions potentially r
    related to exposure to r
    radioactive plutonium at r
    Palomares, Spain in 1966.
    You may be part of the class r
    action lawsuit if you r
    participated in the Palomares r
    nuclear clean-up, and either r
    (1) have not yet filed a related
    claim for VA disability r
    compensation, or (2) have r
    filed a claim or appeal but do r
    not yet have a decision.
    For more information, contact r
    the free lawyer for the class, r
    Michael J. Wishnie of the
    Yale Veterans Legal Services r
    Clinic, at (203) 432-4800, r
    or visit http://www.xxxxxxx/VA.gov.
    Attachments to Joint Response to December 6, 2019, Court Order 7
    DECLARATION OF GARY HICKS
    I, Gary Hicks pursuant to 28 U.S.C. § 1746, declare under penalty of perjury the
    following:
  1. I am the director of Digital Media Engagement for VA’s Office Public and Intergovernmental Affairs. This declaration has been prepared in response to a December 6, 2019, order from the U.S. Court of Appeals for Veterans Claims in Skaar v. Wilkie, No. 17-2574, instructing the parties to submit a proposed class-action notice and a plan for effecting that notice.
  2. The General Counsel’s Office has asked me to describe the reach of
    various Department of Veterans Affairs (VA) media platforms.
  3. The Vantage Point blog serves as VA’s primary digital communications
    content delivery platform averaging more than 1.7 million views per month with more than 85% of Vantage Point readers identifying themselves as Veterans during the last readership survey. Once published, blog posts can be shared on numerous social media channels such as Facebook,
    Twitter and Instagram.
  4. “#VetResources” is a weekly email newsletter sent to more than 10 million subscribers every Wednesday. The newsletter is a summary of VAntage
    Point content generated over the previous seven days. It is the
    Department’s most effective tool to promote Veteran-centric content
    hosted mainly on VAntage Point, but also on the VA.Gov domain.
  5. VA’s homepage, VA.gov, alone receives about 4.4 million views each
    month.
    I certify, under penalty of perjury under the laws of the United States, that the foregoing is true and correct.
    Executed on: January 3, 2020

Director of Digital Media Engagement
810 Vermont Avenue
NW Washington, DC 20420
Attachments to Joint Response to December 6, 2019, Court Order 8
Attachments to Joint Response to December 6, 2019, Court Order 9

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