VA Rules Fight Heads for Full Federal Circuit in Remote Argument

The U.S. Court of Appeals for the Federal Circuit will hold its first remote full court argument Thursday since the coronavirus pandemic began, in a case involving Department of Veterans Affairs interpretive rules.

In-person arguments before the court usually involve the judges jumping in to ask questions and engaging with the advocates and each other. But the court is planning to allot time to the attorneys arguing the case, followed by judges’ questions.

The argument will provide a template for how the Federal Circuit might handle a full-court argument in patent cases, which account for the bulk of its docket. Although parties in the majority of cases seek en banc rehearing, the only other case the full court has currently agreed to hear is another veterans issue about the deadline for filing disability claims.

In the case up for argument Thursday, the National Organization of Veterans’ Advocates Inc. asked the full court to hear its appeal challenging two of the VA’s rules for adjudicating individual benefits claims.

The group wants the court to overturn a 2017 precedential decision in which it said it lacks jurisdiction to review interpretive rules in the VA’s internally binding administrative staff manual.

The format should be “very conducive to a very substantive exchange where you can get the judges’ concerns on the table and try to answer them,” said Roman Martinez, the Latham & Watkins LLP partner who will argue on the group’s behalf.

Only 11 of the court’s 12 active judges will participate; Judge Kimberly A. Moore, whose husband is a Latham & Watkins partner, has recused herself.

Logistics

Each advocate will have three minutes uninterrupted to state his case, then the judges—in order of seniority—will have three minutes each to ask questions. The judges will get another one-minute round to ask follow-up questions.

Eric P. Bruskin, a trial attorney at the Department of Justice, will argue for the VA. The department declined to comment..

An attorney for Military Veterans Advocacy, which has filed an amicus brief in the case, worried that the remote argument might not be as robust as an in-person proceeding.

“I understand the concern for ensuring an orderly process, but I think there’s a natural flow and evolution to an argument, with judges’ building off each other’s questions and the advocate’s answers, that is lost in this more rigid process,” Mel Bostwick of Orrick, Herrington & Sutcliffe LLP in Washington said.

Veterans’ Rights

The Federal Circuit took the unusual step in May of agreeing to hear the case en banc without a three-judge panel first considering it.

In 2017, the court held in Disabled American Veterans v. Secretary of Veterans Affairs that it lacks jurisdiction to review interpretive rules in the VA’s internally binding administrative staff manual. The U.S. Supreme Court agreed to review that ruling but the case became moot before the high court could hear it.

“The case largely turns on whether a precedent should be overturned, and so it needs to be considered en banc because a panel doesn’t have power to overturn the precedent,” Martinez said.

Under federal law, courts can review substantive rules, policy statements, and interpretations adopted by the VA. But the Federal Circuit said in its 2017 decision that review doesn’t extend to interpretations in the VA’s manual.

The full court’s decision “will certainly be a game changer” if it holds that rules in the manual can’t be insulated from judicial review, according to Stephen Kinnaird, who filed an amicus brief in support of review for the National Veterans Legal Services Program, the Veterans of Foreign Wars, and Paralyzed Veterans of America.

If NOVA wins on the threshold jurisdiction issues before the en banc court, the merits questions will go to a three-judge panel, Martinez said.

The case is important, even if it’s all “dry admin law issues and jurisdiction,” Martinez said. “We think Congress authorized the type of pre-enforcement challenges to VA rules that we are trying to bring here.”

The case is NOVA v. Secretary of Veterans Affairs, Fed. Cir., No. 20-1321, en banc argument 10/8/20.