En Banc Activity / Featured

This morning the Federal Circuit granted the National Organization of Veterans Advocates’s petition for initial hearing en banc in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. NOVA requested its initial hearing to be conducted by the full court to consider two questions related to veterans law. In short, the court agreed. Here are the details.

In its petition, NOVA presented the court with the following two questions:

  1. “Whether this Court has jurisdiction under 38 U.S.C. § 502 to review a generally applicable interpretive rule that the Department of Veterans Affairs (VA) promulgates through its Adjudication Procedures Manual.”
  2. “Whether Federal Circuit Rule 47.12(a) impermissibly supersedes the six-year limitations period in 28 U.S.C. § 2401(a), which applies to actions brought under 38 U.S.C. § 502.”

NOVA argued in its petition that, while “Congress vested [the Federal Circuit] with jurisdiction in 38 U.S.C. § 502 to review [the VA’s] rules pre-enforcement,” this Federal Circuit “has devised two roadblocks to Section 502 review that warrant correction en banc.”

First, it contended that the Federal Circuit’s holding in Disabled American Veterans v. Secretary of Veterans Affairs (DAV), 859 F.3d 1072 (Fed. Cir. 2017), “that the court lacks jurisdiction under Section 502 to review interpretive rules promulgated in VA’s internally binding administrative staff manual,” is “mistaken.” Indeed, it pointed out that “VA itself has refused to defend it,” and “the Supreme Court granted certiorari to review its application in Gray v. Secretary of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. 2017), cert. granted sub nom. Gray v. Wilkie, 139 S. Ct. 451 (2018) (No. 17-1679).” But, “[f]ollowing merits briefing,” NOVA explained, “the Gray case became moot, so all the [Supreme] Court could do was vacate the panel’s decision.”

Second, NOVA argued that “Federal Circuit Rule 47.12(a), which creates a 60-day deadline for filing Section 502 challenges . . . . lacks a statutory basis and conflicts with the six-year limitations period in 28 U.S.C. § 2401(a), which [the Federal Circuit] has held applies to Section 502 petitions.”

While VA opposed the petition, the Federal Circuit granted it. The court simultaneously requested additional briefing on questions similar to those presented by NOVA in its petition:

  1. “Whether this court has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals, and whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).”
  2. “Whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a).”

The court also invited amicus briefs:

  • “The court invites the views of amici curiae. Any such brief may be filed without consent and leave of court. Any amicus brief supporting NOVA’s position or supporting neither position must be filed within 20 days after service of NOVA’s opening brief. Any amicus brief supporting the Secretary’s position must be filed within 20 days after service of the Secretary’s brief.”

Notably, while the Federal Circuit’s panel decision in DAV was unanimous, its panel decision in Gray elicited an opinion by Judge Dyk (dissenting in part and concurring in the judgment) indicating his view that “DAV was wrongly decided.” Then, on a petition for rehearing in Gray, Judges Newman and Wallach joined Judge Dyk in dissenting from the court’s decision not to rehear the case en banc. What has changed since then, as noted above, is the Supreme Court’s grant of certiorari and subsequent vacatur in Gray.

In Gray’s response to the government’s motion to dismiss that case at the Supreme Court, Gray’s counsel (notably, the same lead counsel as in this case) effectively predicted the Federal Circuit’s decision to take this case en banc:

“To be sure, a Munsingwear vacatur would not eliminate the Federal Circuit’s prior decision in Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), which likewise rejected Section 502 jurisdiction over challenges to the M-21 Manual. . . . But that decision has been fatally undermined . . . and a Munsingwear order here (in addition to the grant of certiorari) could help persuade the Federal Circuit to reconsider that ruling. Vacating the Federal Circuit’s erroneous decision will send the clearest possible signal—to veterans and the Federal Circuit alike—that this Court is watching, and that the flawed interpretation of Section 502 adopted by that court is not permanently fixed in stone.”

We will watch this case and report on developments.