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March 22, 2013
FOR IMMEDIATE RELEASE
Contact: Cathy Cuddy, Executive Coordinator
Tel: (202) 587-5708
Email:[email protected]
Federal Circuit Court of Appeals Upholds NOVA Position
toPreserve Veterans Due Process Rights
Orders VA to Show Cause Why Sanctions Should Not Be Imposed on
the Responsible Officials
Washington, D.C .The U.S. Court of Appeals for the Federal
Circuit yesterday ruled in favor
of the National Organization ofVeterans Advocates, Inc. (NOVA)
in its case against the
Department of Veterans Affairs (VA) involving due process rights
for military veterans
before the agencys Board of Veterans Appeals (BVA).
In its Order, the Federal Circuit confirmed that the VA acted
unlawfully in 2011 when it
promulgated a regulation that eliminated certain procedural and
appellate rights for
veterans appearing before the BVA. The Court also rebuked VA for
failing to live up to its
promise to stop enforcing its unlawful rule on March 5, 2012. In
an extraordinary move,
the Court ordered VA to show cause why sanctions should not be
imposed for the failure to
keep its word.
As a result of VAs actions, a substantial number of cases may
have been decided using an
illegal rule that deprived veterans of critical due process
rights, potentially costing those
veterans the benefits they had earned. The Order called VAs
conductentirely
unacceptable, highlighting its harmful effects on NOVA, its
attorneys, the Court, and most
importantly of all the veterans affected by the illegal
rule.
As the Order explained, [t]he unwarranted denial of benefits
means real-world
consequences to veterans. Promises of hypothetical relief do not
pay for food or provide
needed medical care. The Order went on to note that VAs conduct
and written
communications refute its assertions that its violations were
unintentional, concluding
that VA was well aware of [its] commitment and intentionally
elected not to fulfill it.
NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC. (NOVA)
1425 K St, NW, Suite 350
Washington, DC 20005
www.vetadvocates.org
mailto:[email protected]:[email protected]:[email protected]:[email protected]
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The Order also made clear that the Court was considering
imposing sanctions as a result of
VAs conduct, and it required the agency to show cause why
sanctions should not be
imposed on the responsible officials. It noted that sanctions
may be needed to motivateVA in the future to treat its commitments
and representations to this court and opposing
counsel with the seriousness to which they are entitled.
The Court indicated that it will take VAs efforts to remedy the
harm it has caused veterans
into consideration when determining whether sanctions are
appropriate. The Order grants
VA sixty days in which to present a plan by which it will remedy
any harm suffered by
veterans as a result of its unlawful conduct. The Court
emphasized that VA should confer
with NOVA in developing its plan.
Yesterdays ruling reaffirms NOVAs stance on preserving due
process rights for veterans
with hearings before the BVA.
As Roman Martinez of Latham & Watkins LLP, NOVAs Counsel of
Record in the case,
stated: The Courts favorable decision is a big win for veterans.
Its a testament to theprinciple that our government must keep faith
with the brave men and women who have
served their country in uniform.
Over the course of more than a year, NOVA has sought to protect
these critical due process
rights and ensure that all veterans have the opportunity for a
meaningful appeal, Martinez
added. We are gratified that the Courthas declared VAs conduct
unlawful and is taking
active steps to ensure that VA now remedies the harm it has
inflicted on veterans.
The rule change occurred on August 23, 2011, when VA promulgated
a new regulation that
exempted the BVA from certain due process procedures outlined in
38 C.F.R. 3.103,
governing claimant hearings before the agency. VA made the new
rule effectiveimmediately, without the formal public comment period
required by law. The resulting
rule change stated that Section 3.103 rights would extend only
to hearings conducted by
the Agency of Original Jurisdiction (i.e., regional offices) and
no longer apply to BVA
hearings.
Under Section 3.103, VA employees who conduct such hearings are
required to fully
explain the issues and suggest the submission of evidence that
may have been overlooked
by the claimant and could be advantageous to the claimants
position. Also, VA is obligated
to assist a claimant in assembling facts to support their
claim.
On September 9, 2011, NOVA filed a Petition for Review in the
Court of Appeals for theFederal Circuitopposing the VAs denial of
due process rights at BVA hearings. On behalf of
NOVA, Mr. Martinez argued that the VAs rule failed to comply
with the Administrative
Procedure Act (APA) because it had been promulgated without the
mandatory notice-and-
comment procedure. VA originally intended to defend its
regulation, but the Department of
Justice concluded that NOVAs arguments were correct and refused
to defend the August
2011 regulation in court.
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VA then began the process of repealing the invalid rule in March
2012. When VA informed
NOVA that it was repealing the invalid rule, it promised NOVA
and the Court that the BVA
would stop applying the rule on March 5, 2012, even before the
repeal formally took effect.
Despite this promise, the BVA continued to apply the rule. The
repeal of the rule took effect
on June 18, 2012.
On November 7, 2012, Mr. Martinez urged the Federal Circuit at
oral argument to hold that
the repeal was retroactive to August 2011. He also asked the
Court to hold VA accountable
for its broken promise to cease applying the invalid rule in
March 2012. Shortly thereafter,
VA promulgated a Final Rule that accepted NOVAs position that
the repeal ofthe rule
should be retroactive to August 23, 2011, the date it was
unlawfully promulgated in the
first place.
To view the Federal Circuit's Order in its entiretyclick
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:[email protected] .
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