Foley Hoag Files Amicus Brief in Radiation Exposure Case Against the U.S. Department of Veterans Affairs on Behalf of Friends of the Earth

Environmental nonprofit argues VA’s rules, practices produce unjust outcomes in medical claims from veterans exposed to radiation during Palomares and similar incidents

May 4, 2018

Foley Hoag LLP has filed an amicus brief in the U.S. Court of Appeals for Veterans Claims on behalf of environmental nonprofit Friends of the Earth in support of veteran Victor B. Skaar’s appeal against the U.S. Department of Veterans Affairs (VA). Friends of the Earth argues that the VA’s rules and practices for adjudicating the medical claims of veterans who were exposed to ionizing radiation during nuclear cleanups like the 1966 incident in Palomares, Spain do not satisfy basic scientific or legal standards, resulting in unjust outcomes for veterans, including Mr. Skaar. Skaar is represented by Yale Law School’s Veterans Legal Services Clinic and seeks class certification on behalf of his fellow Palomares veterans, who have seen the VA deny their claims for radiogenic conditions for decades.

“The VA arbitrarily treats veterans who cleaned up the Palomares site in 1966 worse than other veterans and civilians exposed to less radiation, even according to the agency’s own dose estimates. Worse, those doses are themselves arbitrary,” said Seth Jaffe, partner and coordinator of Foley Hoag’s Environmental Practice Group. “Because the VA has worked over the years to ensure pre-ordained results that prove detrimental to the care of veterans, the agency deserves no deference regarding this matter.”

The 1966 Palomares cleanup resulted from the midflight collision of an American B-52 bomber with its refueling plane. Four hydrogen bombs fell, with three striking the ground near the seaside village of Palomares in the Almería province of Andalusia, Spain. Although there were no nuclear explosions, the chemical explosives in two of the bombs detonated, coating the area in a fine radioactive dust. The U.S. Air Force shipped some 1,600 troops to the area, where they shoveled contaminated earth into barrels for shipment to the U.S., working without protection because their supervisors did not want to alarm the Spanish citizens observing the cleanup. The VA is now consistently denying the medical claims of these veterans.

Friends of the Earth argues that the VA’s refusal to recognize the Palomares cleanup, as well the 1968 Thule and 1977-80 Enewetak Atoll cleanups, as “radiation-risk activities” is “arbitrary, capricious, and irrational.” The amicus brief also details the inadequacies of the VA’s methodology for handling Palomares claims, arguing that the VA’s “improper approach” both results in injustice for veterans and contributes to the continued misunderstanding and underestimation of the health risks associated with radiation exposure and nuclear activities.

“Palomares veterans have been mistreated by a system that purposefully did not notify them of their radiation exposure or add testing details to their medical records,” says Marcie Keever, Legal Director at Friends of the Earth. “The VA continues to claim, incorrectly, that protection and dose monitoring were robust, in what may be an attempt to dissuade veterans from filing claims. Palomares is unfortunately not the only example of a nuclear cleanup operation in which the military has behaved this way.”

The VA did not oppose the filing of the amicus brief, which can be read here.

Foley Hoag attorneys Jaffe, Cicely Parseghian and Sean Ahern filed the amicus brief on behalf of Friends of the Earth.

Friends of the Earth is a non-profit environmental organization that has worked since its formation in 1969 to educate the public about, and take actions to reduce, the environmental and public health threats posed by nuclear energy and nuclear weapons.

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