No. 19-604

Ernest L. Francway, Jr. v. Robert Wilkie, Secretary of Veterans Affairs

Lower Court: Federal Circuit
Docketed: 2019-11-08
Status: Denied
Type: Paid
Amici (2) Experienced Counsel
Tags: administrative-law burden-of-proof department-of-veterans-affairs due-process federal-circuit judicial-presumption medical-examination medical-examiner medical-expertise presumption-of-competency pro-claimant va-medical-examiners veterans-benefits
Key Terms:
AdministrativeLaw SocialSecurity JusticiabilityDoctri
Latest Conference: 2020-03-20
Question Presented (AI Summary)

Whether the court of appeals erred in holding that the VA enjoys a presumption that its medical examiner is competent in every veterans-benefit case

Question Presented (from Petition)

QUESTIONS PRESENTED Congress has established a _ veterans-benefits system that is uniquely pro-claimant. In veteransbenefit cases, every statutory and _ regulatory presumption favors the veteran over the Department of Veterans Affairs. Despite this, the Federal Circuit has created a “presumption of competency” that allows the VA and its reviewing courts to presume that VA medical examiners are competent unless the veteran articulates a specific reason to believe otherwise. The questions presented are: 1. Whether the court of appeals erred in holding that the VA enjoys a presumption that its medical examiner is competent in every veterans-benefit case. 2. Whether the court of appeals erred in expanding the presumption of competency so that the VA and reviewing courts presume, not only that VA medical examiners are competent, but also that they are specialists in the relevant area of medicine. ii STATEMENT OF RELATED CASES Pursuant to Supreme Court Rule 14.1(b)(iii), counsel for Petitioner states that it is not aware of any proceedings directly related to the case in this Court.

Docket Entries

2020-03-23
Petition DENIED.
2020-02-26
DISTRIBUTED for Conference of 3/20/2020.
2020-02-21
Reply of petitioner Ernest L. Francway, Jr. filed.
2020-02-07
Brief of respondent Robert Wilkie, Secretary of Veterans Affairs in opposition filed.
2019-12-18
Motion to extend the time to file a response is granted and the time is further extended to and including February 7, 2020.
2019-12-17
Motion to extend the time to file a response from January 8, 2020 to February 7, 2020, submitted to The Clerk.
2019-12-09
Brief amicus curiae of Military-Veterans Advocacy Inc. filed.
2019-12-05
Motion to extend the time to file a response is granted and the time is extended to and including January 8, 2020.
2019-12-04
Motion to extend the time to file a response from December 9, 2019 to January 8, 2020, submitted to The Clerk.
2019-12-04
Brief amicus curiae of National Law School Veterans Clinic Consortium filed.
2019-11-07
Petition for a writ of certiorari filed. (Response due December 9, 2019)

Attorneys

Ernest L. Francway, Jr.
Michael E. JoffreSterne, Kessler, Goldstein & Fox P.L.L.C., Petitioner
Michael E. JoffreSterne, Kessler, Goldstein & Fox P.L.L.C., Petitioner
Military-Veterans Advocacy Inc.
Melanie Lynn BostwickOrrick, Herrington & Sutcliffe LLP, Amicus
Melanie Lynn BostwickOrrick, Herrington & Sutcliffe LLP, Amicus
National Law School Veterans Clinic Consortium
Angela K. DrakeThe Veterans Clinic at the University of Missouri-Columbia School of Law, Amicus
Angela K. DrakeThe Veterans Clinic at the University of Missouri-Columbia School of Law, Amicus
Robert Wilkie, Secretary of Veterans Affairs
Noel J. FranciscoSolicitor General, Respondent
Noel J. FranciscoSolicitor General, Respondent