Argument Preview

Next week, in an en banc session of the court, the Federal Circuit will hear arguments in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. In this case, the court will consider two issues relates to veterans law: (1) whether the Federal Circuit has jurisdiction to review a generally applicable interpretive rule promulgated by the Department of Veterans Affairs through its Adjudication Procedures Manual, and (2) whether a Federal Circuit Rule impermissibly supersedes a statute of limitations. This is our argument preview.

NOVA explains in its opening brief that the Federal Circuit has “devised two roadblocks to [the Section 502] review mechanism,” the specialized review mechanism that allows veterans to challenge VA rules directly in an Article III court. First, NOVA argues that the court’s holding in “Disabled American Veterans v. Secretary of Veterans Affairs (DAV), . . . that it lacks jurisdiction under Section 502 to review interpretive rules promulgated in VA’s internally binding administrative staff manual,” is mistaken. Second, it argues that the court’s previously-numbered Rule “47.12(a), which creates a 60-day deadline for filing Section 502 actions[,] . . . impermissibly overrides the six-year statute of limitations in [28 U.S.C.] § 2401(a), which this Court has held applies to Section 502 actions.” NOVA states that “[t]he en banc Court should restore the full scope of Section 502 jurisdiction by eliminating the barriers imposed by DAV and Rule 47.12(a).”

In his response brief, the Secretary of Veterans Affairs argues two points to answer the issues presented to the court. First, he argues that “[i]interpretive provisions that VA publishes in the Manual, like the knee provisions that NOVA challenges, are not subject to pre-enforcement review under 38 U.S.C. § 502 because they do not fall within the categories of agency action referred to in 5 U.S.C. §§ 552(a)(1) or 553.” Further he contends that NOVA’s assertions “conflict[] with the text, structure, history, and purpose of FOIA.” Second, he argues that “Federal Circuit Rule 47.12(a), recently renumbered as Rule 15(f), . . . . governs in tandem with 28 U.S.C. § 2401(a).” In contrast to NOVA, he asserts that “there is no indication in the [Veterans Judicial Review Act] or elsewhere that Congress intended section 2401(a) to bar courts from adopting claim-processing rules like Rule 15(f), which ‘promote the orderly progress of’ litigation.”

In its reply brief, NOVA makes three arguments. First, it argues “VA largely ignores (or tries to re-write) the statutory text bearing on this Court’s jurisdiction under 38 U.S.C. § 502.” Second, it contends that, while the “VA argues that the challenged Manual provisions are not ‘final agency action’ under the Administrative Procedure Act (APA), . . . . Section 704 [of Title 5] itself makes clear that its finality requirement does not apply here.” Third, NOVA rejects “VA’s defense of the 60-day deadline for filing Section 502 petitions,” maintaining that “the court-created 60-day deadline cannot override the longer period set by Congress.”

Three amicus briefs were filed, all in support of NOVA. In the first amicus brief, Military-Veterans Advocacy Inc. argues that the court foreclosing review of VA rules “diverges from the plain meaning of the relevant statutes, and it does so in a way that disfavors veterans and fails to resolve the problem Congress set out to address.” In the second amicus brief, National Veterans Legal Service Program contends that, “[i]f this erroneous precedent stands, veterans will be unable to obtain prompt Article III pre-enforcement review of unlawful manuals” and “will instead face a lengthy and backlogged process.” In the third amicus brief, the National Law School Veterans Clinic Consortium asserts that “[t]he effect of this Court’s [precedent] is to allow the Secretary to evade judicial review,” and that “[t]here is no other equivalent mechanism to section 502 review available to a veteran to secure relief in the circumstances underlying this appeal.”

Notably, after the submission of the parties’s briefs, the court issued an order requesting the parties to file supplemental briefs before oral argument addressing questions related to NOVA’s Article III standing.

In its supplemental brief, NOVA argues that it “has standing to bring this case.” In particular, NOVA contends that, “[b]ecause NOVA’s standing is self-evident under [the court’s caselaw] and unchallenged by VA, additional evidence of NOVA’s standing is unnecessary.” NOVA goes on, however, to “provid[e] the Court with evidence confirming that NOVA has Article III associational standing in this case.”

In his supplemental brief, the Secretary argues that while the court has previously afforded NOVA associational standing to challenge a VA regulation, it “does not lead ineluctably to standing in every case.” “NOVA’s associational standing in DAV says nothing about whether it, or any of its members, can satisfy the requirements for standing.” Additionally, the Secretary argues NOVA’s argument of self-evident standing is wrong because “standing to litigate cannot be waived or forfeited.” Moreover, because the Court has now questioned NOVA’s standing sua sponte, the Secretary maintains that “NOVA must meet its burden [to establish standing].”

Oral arguments will be heard next week on Thursday, October 8, 2020. We will keep track of this case and report on any developments.