En Banc Activity / Opinions

As we previously reported, last week the Federal Circuit issued an en banc opinion in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. After deciding that NOVA had standing and the court had jurisdiction over the case, the court held that a Federal Circuit rule setting a filing deadline for certain petitions was inconsistent with a federal statute and therefore invalid. Notably, to reach these conclusions, the court not only invalidated one of its rules but also overruled three of its cases. Here is our summary of the opinion.

Judge Dyk wrote the opinion on behalf of a unanimous en banc court (other than Judge Moore, who did not participate). As mentioned, the opinion addressed the issues of NOVA’s standing, the court’s jurisdiction, and the timeliness of the petitioners’ challenge. First, the court concluded that NOVA did have standing “because [NOVA] ha[d] veteran members who [were] adversely affected by the challenged Rules.” Second, the court concluded it had jurisdiction under 38 U.S.C. § 502 to review both a Knee Joint Stability Rule Manual provision and a Knee Replacement Rule. Third, the court concluded that NOVA’s challenge was timely under a statute of limitations provided by 28 U.S.C. § 2401(a), and that “Federal Circuit Rule 15(f), establishing a 60-day time limit for bringing section 502 petitions, [was] invalid.”

In more detail, NOVA sought review of two interpretive rules governing disability claims for service-related knee injuries: the Knee Joint Stability Rule and the Knee Replacement rule. NOVA argued that the Federal Circuit “ha[d] jurisdiction over their petition because both Rules ‘qualify as interpretive rules for purposes of Section 502.’” NOVA asked the court to overrule a previous decision that held that the court lacked Section 502 jurisdiction to review interpretive rules promulgated in the VA Adjudication Procedures Manual. NOVA acknowledged that while its petition was timely under 28 U.S.C. § 2401(a), it was not timely under

Federal Circuit Rule 15(f) . . . , which states that an “action for judicial review under 38 U.S.C. § 502 of a rule and regulation of the Department of Veterans Affairs must be filed with the clerk of court within 60 days after issuance of the rule or regulation or denial of a request for amendment or waiver of the rule or regulation.”

NOVA argued that this rule impermissibly conflicted with the six-year statute of limitation set forth in Section 2401(a) and asked the court to set aside Rule 15(f).

After granting en banc review, the court, “pursuant to [its] independent duty to verify standing,” asked the parties to file supplemental briefs addressing questions related to NOVA’s standing.

In its opinion, the court first addressed the issue of standing. NOVA argued that it had “associational standing to challenge both Rules ‘for essential the same reasons this Court expressly held that NOVA had standing in DAV v. Gober,’” and that the “allegations in [the] petition . . . match[ed] . . . the allegations deemed sufficient in” that case. The court, however, decided that “Gober was incorrectly decided insofar as it held that the first prong of the [Supreme Court’s] Hunt test can be established solely on the basis of NOVA member veteran status without identification of an individual affected member, the nature of his or her claimed injury, and the reasons that the challenged interpretive rule would adversely affect the member.” As a result, the court formally overruled Gober with respect to the first prong of Hunt, now holding that

when an organization challenges VA rulemaking and invokes the veteran status of a member to meet the first prong of the Hunt test for associational standing, the organization must show that the veteran member has an actual or potential claim and that this claim is sufficiently affected by the particular challenged rule to meet the requirements of actual or imminently threatened concrete harm and the other requirements for that member to have Article III standing.

Even based on its newly articulated standard, the court found that NOVA’s supplemental briefing on standing, where three specific NOVA members were named, showed that NOVA had met its burden on Hunt’s first prong. The court also found that NOVA satisfied the second prong of Hunt, showing that the “interests [NOVA] seeks to protect are germane to the organization’s purpose.” Thus, the court held, NOVA had shown it had associational standing to challenge the two rules.

The court then turned to address the issue of jurisdiction. In this regard, the court addressed separately its jurisdiction to review the two rules at issue.

The court first found that the Knee Joint Stability Rule fell within the court’s Section 502 jurisdiction over “[a]n action of the Secretary to which section 552(a)(1) . . . refers.” In analyzing this issue, the court notably overruled Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), and Gray v. Secretary of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. 2017). The court concluded that because the Knee Joint Stability Rule was both an “interpretive rule of general applicability” and a “reviewable agency action,” it had jurisdiction to review that rule under Section 502.

Turning to the Knee Replacement Rule, the court found that it would be reviewable “under section 502 for the same reasons explained . . . for the Knee Joint Replacement Rule.” It left to the merits panel, however, “to determine whether the Manual provision containing the Knee Replacement Rule reiterates the 2015 Interpretive Guidance or is independently a reviewable interpretive rule.” Given that the court found “either the 2015 Interpretive Guidance or the Manual prevision [was reviewable] under section 502,” the court determined it had jurisdiction over NOVA’s amended petition.

The final issue addressed by the court was the timeliness of NOVA’s challenge. The court noted that Section 502 “does not contain its own statute of limitations,” but that previous court precedent had found that the six-year statute of limitations in § 2401(a) “applie[d] to pre-enforcement challenges under 38 U.S.C. § 502.” The government argued that the court’s local rule 15(f) shortened the time to file a petition for review to sixty days and “govern[ed] section 502 actions in tandem with section 2401(a).” The court, however, ultimately found that “Federal Circuit Rule . . . 15(f) . . . is invalid as inconsistent with 28 U.S.C. § 2401(a),” and that “§ 2401(a) alone governs the time for bringing pre-enforcement claims under Section 502.”

Notably, as a sort of coda to this opinion, the day after publishing this opinion the court issued a Notice of Emergency Amendment to Federal Circuit Rule 15(f).