Veteranclaims’s Blog

May 6, 2020

NOVA v. SECRETARY OF VETERANS AFFAIRS, Order; Issues: whether FedCir. has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals; whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017); whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a);

Filed under: Uncategorized — veteranclaims @ 5:56 pm

United States Court of Appeals for the Federal Circuit


NATIONAL ORGANIZATION OF VETERANS’
ADVOCATES, INC.,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent


2020-1321


Petition for review pursuant to 38 U.S.C. Section 502.


ON PETITION FOR HEARING EN BANC


ROMAN MARTINEZ, Latham & Watkins LLP, Washington,
DC, filed a petition for hearing en banc for petitioner.
Also represented by SHANNON MARIE GRAMMEL, BLAKE
STAFFORD.
ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, filed a response to the petition for respondent.
Also represented by JOSEPH H. HUNT, ROBERT EDWARD
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; CHRISTOPHER O.
ADELOYE, JULIE HONAN, Y. KEN LEE, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Case: 20-1321 Document: 50 Page: 1 Filed: 05/06/2020
2 NOVA v. SECRETARY OF VETERANS AFFAIRS

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, for amicus curiae Military-Veterans
Advocacy Inc. Also represented by JEFFREY T. QUILICI,
Austin, TX; JOHN B. WELLS, Law Office of John B. Wells,
Slidell, LA.
STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Washington,
DC, for amici curiae National Veterans Legal Services
Program, Paralyzed Veterans of America, Veterans of
Foreign Wars. Amicus curiae National Veterans Legal Services
Program also represented by BARTON F. STICHMAN,
National Veterans Legal Services Program, Washington,
DC.


Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
and STOLL, Circuit Judges. *
PER CURIAM.
O R D E R
The National Organization of Veterans’ Advocates,
Inc. (“NOVA”) filed a petition for initial hearing en banc. A
response thereto was invited by the court and filed by the
Secretary of Veterans Affairs. NOVA was granted leave to
file a reply in support of the petition. Military-Veterans
Advocacy Inc. and the National Veterans Legal Services
Program, Paralyzed Veterans of America, and the Veterans
of Foreign Wars were granted leave to file briefs as amici
curiae in support of the petition.
The petition was referred to the circuit judges who are
in regular active service. A poll was requested and taken,

  • Circuit Judge Moore did not participate.
    Case: 20-1321 Document: 50 Page: 2 Filed: 05/06/2020
    NOVA v. SECRETARY OF VETERANS AFFAIRS 3
    and the court has decided that the petition warrants en
    banc attention.
    Upon consideration thereof,
    IT IS ORDERED THAT:
    (1) The petition for hearing en banc is granted.
    (2) The parties are requested to file briefs addressing
    the following two issues:
    A. Whether this court has jurisdiction under 38
    U.S.C. § 502 to review provisions of the Department
    of Veterans Affairs’ Adjudication
    Procedures Manual M21-1 that are binding
    on the agency’s initial adjudicators but not on
    the Board of Veterans’ Appeals, and whether
    this court should overrule Disabled American
    Veterans v. Secretary of Veterans Affairs, 859
    F.3d 1072 (Fed. Cir. 2017).
    B. Whether the time for filing a direct action for
    judicial review under 38 U.S.C. § 502 is governed
    by the 60-day deadline specified by
    Federal Circuit Rule 47.12(a) or only by the
    six-year statute of limitations in 28 U.S.C.
    § 2401(a).
    (3) NOVA’s opening brief must be filed within 45 days
    from the date of this order. The Secretary’s brief is
    due within 45 days after service of NOVA’s opening
    brief. NOVA’s reply brief must be filed within
    30 days after service of the Secretary’s brief.
    (4) The court invites the views of amici curiae. Any
    such brief may be filed without consent and leave
    of court. Any amicus brief supporting NOVA’s position
    or supporting neither position must be filed
    within 20 days after service of NOVA’s opening
    brief. Any amicus brief supporting the Secretary’s
    Case: 20-1321 Document: 50 Page: 3 Filed: 05/06/2020
    4 NOVA v. SECRETARY OF VETERANS AFFAIRS
    position must be filed within 20 days after service
    of the Secretary’s brief.
    (5) The court requires 24 paper copies of all briefs and
    appendices provided by the filer within 5 business
    days from the date of electronic filing of the document.
    Administrative Order No. 20-01 does not exempt
    the filing of these paper copies.
    (6) This case will be heard en banc on the basis of the
    briefing ordered herein and oral argument.
    (7) Oral argument will be scheduled at a later date.
    May 6, 2020
    Date
    FOR THE COURT
    /s/ Peter R. Marksteiner
    Peter R. Marksteiner
    Clerk of Court
    Case: 20-1321 Document: 50 Page: 4 Filed: 05/06/2020

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