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Unanimous En Banc Federal Circuit Victory for US Veterans

December 10, 2020
D.C. appellate team scores complete pro bono victory for National Organization of Veterans Advocates.

A Washington, D.C. appellate litigation team has achieved a major pro bono victory on behalf of the National Organization of Veterans Advocates (NOVA) and three of its members. The case raised important questions about whether and how US veterans seeking benefits for disabilities arising from their military service can exercise their statutory rights to challenge unlawful agency action by the Department of Veterans Affairs (VA). The Federal Circuit’s unanimous, 11-0 en banc ruling will improve access to federal court for veterans and their advocates who seek to challenge such actions.

This case involved a challenge to two provisions of the VA’s disability benefits adjudication manual, both of which govern claims for knee injuries. NOVA, an advocacy group for disabled veterans, argued that both manual provisions unlawfully deprive veterans of benefits to which they are entitled because of their knee injuries. On behalf of NOVA, Latham took the unusual step of asking the full en banc Federal Circuit to hear the case in the first instance (as opposed to a typical three-judge panel) so that the circuit court could overturn its 2017 ruling in Disabled American Veterans (DAV) v. Secretary of Veterans Affairs. In DAV, the Federal Circuit had held that it lacked jurisdiction to hear challenges to unlawful rules that the VA published in its disability benefits adjudication manual. That jurisdictional barrier was significant, as the VA’s manual governs all claims for disability benefits filed with the VA. Two years ago, in Gray v. Wilkie, Latham had successfully persuaded the US Supreme Court to grant certiorari to consider the validity of the DAV ruling, but the case became moot weeks before oral argument. Here, NOVA urged the Federal Circuit to grant initial en banc review to reconsider its DAV precedent, as well as to reexamine several other important threshold legal doctrines that the VA often invokes to block veterans from challenging their unlawful rules.

The Federal Circuit granted NOVA’s petition and convened en banc to decide four threshold questions implicated in NOVA’s case, including the DAV jurisdictional question, standing, the final agency action requirement, and timeliness. On December 8, the court issued a unanimous, 11-0 opinion adopting Latham’s arguments on behalf of NOVA on every major issue in the case. The Federal Circuit ultimately concluded that it has the jurisdictional authority to review VA interpretive rules laid out in its manual. In doing so, the court overturned its DAV precedent and invalidated its own rule imposing an overly restrictive 60-day deadline for veterans to challenge unlawful VA agency action. Going forward, the ruling will allow veterans (and veterans groups like NOVA) to obtain pre-enforcement review of VA rules and policies promulgated in VA manuals. Having resolved these threshold justiciability issues, the court referred NOVA’s case to a three-judge panel for resolution on the merits.

“This ruling is an enormous victory for our nation’s veterans,” said Roman Martinez, the Washington, D.C. partner who led the Latham team and argued the case to the en banc court. “It vindicates their right to obtain prompt judicial review to overturn any illegal rules or policies that the Department of Veterans Affairs promulgates in its administrative manuals. The decision will help ensure that VA plays by the rules, and that veterans receive the full benefits they are due under law. We are grateful to the Federal Circuit for its ruling.”

The team also included associates Shannon Grammel and Blake Stafford.