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

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2018-2136 · judgment October 15, 2019

Certiorari denied · March 23, 2020
Pre-decision estimate: 21% cert probability (95% interval 13%–32%)

Before the decision, about 5.1× the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below, a circuit split argued in the petition, and a dissent in the court below (flagged in the 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.

Counsel of record

For petitioner
Michael E. Joffre
Sterne, Kessler, Goldstein & Fox, P.L.L.C.

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Amicus briefs
2 cert-stage

Proceedings

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