Federal Circuit Sets Argument in Substitution Rule Making Challenge

On December 7, 2015, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) will hear argument on NOVA’s petition for review of the VA’s final rule governing substitution of certain qualifying survivors in pending claims and appeals upon the veteran’s death. National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, No. 2015-7024. Kenneth Carpenter, Carpenter Chartered, will present NOVA’s argument.

NOVA contends the provisions of 38 C.F.R. §§ 3.1010(b) and (d), as well as §§ 20.900(a)(2) and 20.1302(a), impose unnecessary burdens on dependents seeking to be substituted and result in needless delays. Specifically, sections 3.1010(b) and (d) require survivors to file a request to substitute with the agency of original jurisdiction and provide evidence of eligibility even when a valid dependency relationship is already established. The VA’s amendments to sections 20.900(a)(2) and 20.1302(a) result in dismissal without prejudice of an appeal pending before the Board of Veterans’ Appeals even when an eligible dependent is already identified. The recognized survivor is forced to apply to the agency of original jurisdiction for a redetermination of eligibility, thereby delaying a decision on the appeal. These regulations are at odds with the statutory intent of 38 U.S.C. § 5121A.

In response to the Secretary’s argument that the nature of the dependency relationship is not static and the VA’s statutory interpretation is entitled to Chevron deference, NOVA asserted the challenged provisions are inconsistent with the expressed intent of Congress, as well as arbitrary and capricious. Furthermore, the pro-veteran canon of statutory interpretation should apply.

To view the Federal Circuit’s oral argument schedule and listen to arguments, see http://www.cafc.uscourts.gov/argument/upcoming-oral-arguments.