National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs

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
______________________

R
OMAN MARTINEZ, Latham & Watkins LLP, Washing-
ton, DC, filed a petition for hearing en banc for petitioner.
Also represented by S
HANNON MARIE GRAMMEL, BLAKE
STAFFORD.

ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, filed a response to the petition for respondent.
Also represented by J
OSEPH 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.
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NOVA v. SECRETARY OF VETERANS AFFAIRS
2

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, Wash-
ington, DC, for amici curiae National Veterans Legal Ser-
vices Program, Paralyzed Veterans of America, Veterans of
Foreign Wars. Amicus curiae National Veterans Legal Ser-
vices Program also represented by BARTON F. STICHMAN,
National Veterans Legal Services Program, Washington,
DC.
______________________

Before P
ROST, Chief Judge, NEWMAN, LOURIE, DYK,
O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
and S
TOLL, 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.
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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 De-
partment 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 gov-
erned 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 po-
sition or supporting neither position must be filed
within 20 days after service of NOVA’s opening
brief. Any amicus brief supporting the Secretary’s
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NOVA v. SECRETARY OF VETERANS AFFAIRS
4
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 docu-
ment. Administrative Order No. 20-01 does not ex-
empt 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