Federal Circuit Approves VA Plan, Cautions Agency on Full Compliance

August 9, 2013
Contact: Katy Andriano, Executive Coordinator
Tel: (202) 587-5708
Email: kandriano@vetadvocates.org

 NOVA Anticipates Fair Remand for Veterans Harmed by the Agency’s Invalid 2011 Rule

 Washington, D.C .– The U.S. Court of Appeals for the Federal Circuit accepted a plan from the Department of Veterans Affairs (VA) on Monday to remedy any harm caused when the agency promulgated an invalid rule eliminating due process rights for military veterans before the agency’s Board of Veterans’ Appeals (Board).

In the matter of the National Organization of Veterans’ Advocates, Inc. (NOVA) v. Secretary of Veterans Affairs, this latest decision indicated the Court’s satisfaction with the VA’s plan to address identified problems for veterans created by the agency’s invalid 2011 rulemaking.  VA will also avoid sanctions for its misconduct throughout the case, at least for now.

The VA’s plan commits the agency to provide individual notices, within 90 days, to every veteran who had a case that may have been affected by the Board’s unlawful application of the 2011 Rule.  VA will grant such veterans the right to a new Board decision in each case, in addition to the right to participate in a new hearing and/or to submit additional evidence in support of their claim for benefits.  VA has also agreed to support a remand of any case pending in the Veterans Court that involves the potential application of the unlawful rule.  VA will conduct quarterly reviews to ensure that the Board does not apply the unlawful 2011 Rule in future cases.

Per the Court’s request, the plan also indicates how the agency will handle any cases that fell outside of its jurisdiction.  For example, VA will file a joint motion for remand with the appropriate appellate court(s) (e.g., Court of Appeals for Veterans Claims, Court of Appeals for the Federal Circuit) to regain jurisdiction of cases on appeal.  VA also clarified how it will approach any cases affirmed by an appellate court prior to VA requesting remand.

“As was done in the development of the Plan, we expect the VA to collaborate with appellant NOVA throughout the process of implementation, thus assuring that no veteran who is entitled to procedural and due process benefits under 38 C.F.R. § 3.103 will be denied such benefits,” the Court stated in its August 5 decision.

The Court’s decision also came with a cautionary note that “… despite efforts of the Board leadership, the record indicates that some Board judges and attorneys continued to misapply the invalid 2011 Rule even after instructed otherwise.  We trust that VA will take firm steps to ensure full compliance by all Board and staff with the Proposed Plan.”

The Court will retain jurisdiction of the case until the parties file a joint motion indicating judicial review is no longer necessary, once the plan is fully implemented and the harm caused to veterans has been alleviated.

NOVA has indicated that it supports the VA’s plan.  As NOVA’s counsel, Roman Martinez of Latham & Watkins LLP, explained:  “NOVA is satisfied that the VA’s plan sets out a reasonable path to remedying the harms that its unlawful rule has caused to veterans.  We look forward to working with VA to ensure that the plan is implemented and that any veteran who suffered harm under VA’s unlawful rule obtains relief.”

Mr. Martinez and his associates at Latham & Watkins, LLP provided pro bono representation in this case over the course of several years.  In recognition of his commitment to serve our nation’s veterans, NOVA presented Mr. Martinez with its first annual Community Service Award during the organization’s 20th anniversary celebration on April 20, 2013 in Washington, DC.

To view the Court’s decision, CLICK HERE.

 About NOVA

The National Organization of Veterans' Advocates is a not for profit educational membership organization incorporated in the District of Columbia in 1993. NOVA is a national organization of attorneys and other qualified members who act as advocates for disabled veterans. Our goal is to provide excellent representation before the U.S. Court of Appeals for Veterans’ Claims, the Board of Veterans’ Appeals, and the Department of Veterans Affairs, to veterans who have disability claims against the government resulting from their service as members of the armed forces.  Offices are at 1425 K St NW, Suite 350, Washington, DC 20005.  Phone: (202) 587- 5708, Fax: (202) 587- 5600, Email: kandriano@vetadvocates.org.