Published on March 30, 2023

On March 29, Mizzou Law 2L Katherine Frerking and Professor Angela Drake, director of the MU Veterans Clinic, filed an amicus brief with the U.S. Supreme Court for an upcoming case.

The case, Skaar v. McDonough, is a putative class action involving hundreds of veterans who were exposed to large amounts of radioactive plutonium dust when they participated in a “clean up” following the collision of two Air Force planes above Palomares, Spain in the 1960s. For years, the Office of Veterans Affairs (VA) used a flawed radiation dose estimate methodology to determine the amount of radiation to which these veterans were exposed. In the case, the class is challenging VA’s flawed methodology as it applied to the calculation of their disability compensation benefits. The petition for writ of certiorari is before the Supreme Court because the Federal Circuit wrongly limited the class of Palomares veterans to only those who had exhausted administrative procedures by receiving Board decisions regarding their exposure.

The petition for writ argues that the Federal Circuit’s decision is wrong because class actions should be a procedural tool available to veterans regardless of whether they exhausted administrative procedures. This argument is supported by the history and authority of the Veterans Court, as well as practical concerns including the inadequacy of precedential decisions and the need for systemic relief given the nature of VA’s disability compensation program.

The filed amicus brief expands this final point: widespread, systemic problems within VA, including excruciating delays and unreasonably high error-rates, highlight the immense need and practicality of veterans’ ability to employ the class action tool—especially for injunctive-type relief. Moreover, limiting the use of the tool to only those veterans who have exhausted administrative procedures exacerbates these systemic problems. VA’s long-term miscalculation of it radiation dose methodology for Palomares veterans is a textbook example of a systemic issue for which judicial intervention of class-wide, injunctive relief is both necessary and proper.

Along with Frerking and Professor Drake, the brief was co-authored by Yelena Duterte and Jenny Vanacker of University of Illinois-Chicago Law and Judy Clausen of University of Florida Law.

To read the full amicus brief, click here.