Orrick Pro Bono Team Secures Important Federal Circuit Win for Disabled Veterans

April.03.2018

Siding with an Orrick pro bono team’s arguments on behalf of a Gulf War veteran, a federal appeals court today established vital precedent for veterans seeking benefits for disabilities arising from their military service when the disability consists solely of pain. In Saunders v. Wilkie, the Federal Circuit unanimously rejected certain limits on disability benefits imposed for nearly two decades by the Department of Veterans Affairs, providing critical support to veterans who can now recover just compensation for pain-related disabilities.

An Orrick team led by Mel Bostwick and Eric Shumsky, partners in the firm’s Supreme Court and Appellate Practice, along with co-counsel at the National Veterans Legal Services Program, secured the win for Gulf War veteran Melba Saunders.

The Federal Circuit specifically rejected a VA rule that denies benefits to veterans for pain associated with their military service unless a medical professional can point to some current diagnosable condition associated with the pain. This rule, the Orrick team argued, conflicts with federal guarantees of compensation benefits to veterans who become disabled as a direct result of their military service. The court sided with our arguments that “disability” refers to functional impairment, not to a particular disease or injury; that pain can impair a veteran’s ability to function and earn a living; and that compensation is available as long as the disabling pain can be traced to a veteran’s military service.

Calling the rule we advocated “common sense,” the court also rejected the VA’s argument that pain must be accompanied by some specific physical evidence, such as an anatomic abnormality or limited range of motion. “The policy underlying veterans compensation – to compensative veterans whose ability to earn a living is impaired as a result of their military service – supports the holding we reach today,” the court wrote.

The Federal Circuit remanded the matter to the Board of Veterans Appeals to apply the correct law and determine whether Ms. Saunders, who experiences disabling knee pain resulting from a condition incurred during her military service, is entitled to disability compensation.

“Congress recognized that the nation owes these veterans for their sacrifices, and the court today vindicated the common sense notion that this debt does not depend on whether a veteran’s disabling pain can be labeled with a specific medical diagnosis,” said Mel, who argued the case. “We are pleased with the court’s straightforward application of the law that corrects a decades-long error by the Department of Veterans Affairs and sets important precedent in veterans benefits cases.”

The court’s decision is here. Coverage of the decision in Law360 can be found here, while coverage in The Am Law Litigation Daily can be found here.

Related Lawyers

Mel Bostwick Partner, Supreme Court & Appellate, Intellectual Property

Washington, D.C.

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D:+1 202 339 8483
E: [email protected]

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Supreme Court & Appellate
Intellectual Property

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Mel Bostwick Partner

Washington, D.C.

Mel’s practice capitalizes on two of her passions: technology and great writing. As an appellate lawyer, she has the opportunity to help companies protect their innovations and their intellectual property. She is adept at translating complex technology and intricate legal issues into a clear and simple presentation that judges of any background can understand. Mel brings these skills to bear in representing clients on appeal to the Federal Circuit and before the Supreme Court, and also in partnering with trial teams to address legal and strategic problems in district court, the ITC, and the PTAB. She also regularly advises technology clients on difficult IP and strategic issues facing their companies.

Mel also has the privilege of representing pro bono clients and is particularly passionate about using her Federal Circuit experience to help veterans in their appeals to the court.

Prior to joining Orrick, Mel was an associate at a litigation boutique in Washington, D.C., where she represented clients in trial and appellate litigation and before the Federal Communications Commission. Mel served as a law clerk to Judge Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit and Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit.

Eric Shumsky Partner, Supreme Court & Appellate, Intellectual Property

Washington, D.C.; San Francisco

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D:+1 202 339 8464
E: [email protected]

Practice:

Supreme Court & Appellate
Intellectual Property
Complex Litigation & Dispute Resolution

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Eric Shumsky Partner

Washington, D.C.; San Francisco

Chambers USA reports that Eric is “hailed as ‘highly intelligent, an effective communicator and a great writer’ by contacts, and his high-profile work in the tech patent sector is of particular interest to those who recognize him as one who ‘prepares meticulously, anticipates every question, and is a gifted orator.’” Legal 500 touts his “exceptional courtroom demeanor and presentation skills” as one of “the finest appellate litigators in the nation.” And Reuters, in a report reviewing some 17,000 practitioners, identified Eric as part of an “elite cadre” of 75 lawyers who are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.”

Eric has served as appellate counsel to a who’s who of leading companies, including AT&T, DISH Network, Facebook, Genentech, Gilead, KPMG, LG Electronics, LinkedIn, Lyft, Microsoft, Morgan Stanley, Netflix, Norfolk Southern, Synopsys, Twitter, and Union Carbide. Across an array of industries, Eric has briefed and argued issues as diverse as patent and copyright, labor and employment, preemption, punitive damages, environmental law, national security, and foreign sovereign immunity. He has been a primary author of more than 100 briefs in the Supreme Court alone.

Eric has particular proficiency in matters of technology and intellectual property. He regularly litigates novel issues concerning the regulation of the internet, including CDA Section 230, computer fraud, takedown notices, and internet domain names. He has been counsel in dozens of patent appeals in the Federal Circuit—litigating patents ranging from semiconductor construction, computer architecture, and genetic sequencing to tobacco curing, keyboard trays, and electrical junction boxes. A former law clerk on the Ninth Circuit and the Central District of California, Eric has extensive experience in the California state and federal appellate courts where tech issues commonly arise.

In addition to traditional appellate work, Eric has years of experience developing legal strategy in high-profile and complex cases in trial courts. Eric has performed this role in high-stakes multi-district litigation, criminal trials, and civil litigation involving critical dispositive motions.

Prior to joining Orrick, Eric was a partner in the appellate group at Sidley Austin.